This case was last updated from Los Angeles County Superior Courts on 11/24/2020 at 00:26:28 (UTC).

IMEG CORP VS SUNIL PATEL

Case Summary

On 07/25/2017 IMEG CORP filed a Labor - Other Labor lawsuit against SUNIL PATEL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RITA MILLER and CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9383

  • Filing Date:

    07/25/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RITA MILLER

CHRISTOPHER K. LUI

 

Party Details

Plaintiff, Petitioner and Cross Defendant

IMEG CORP

Defendants, Respondents and Cross Plaintiffs

DOES 1 TO 100

PATEL SUNIL

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LECRONE JOHN P. ESQ.

RIAZ JIBRAUN BIN

LECRONE JOHN PRESCOTT

COMMERSON SCOTT ROBERT

LECRONE JOHN

COMMERSON SCOTT R.

Defendant, Respondent and Cross Plaintiff Attorneys

FREY RICHARD J.

HOFFER DANIEL P.

PEPPLE ROBERT HAROLD

FREY RICHARD JAMES

BECERRA CARLOS

ICKOWITZ CHANA EMILY

LOYA EDWARD JOSEPH

LOYA EDWARD J. JR.

Plaintiff and Cross Defendant Attorneys

RIAZ JIBRAUN BIN

LECRONE JOHN PRESCOTT

COMMERSON SCOTT ROBERT

LECRONE JOHN

COMMERSON SCOTT R.

COMMERSON SCOTT

 

Court Documents

ANSWER TO COMPLAINT

8/31/2017: ANSWER TO COMPLAINT

SUNIL PATEL'S CROSS-COMPLAINT AGAINST IMEG CORP. FOR: (1) FAILURE TO PERMIT COPYING AND INSPECTION OF EMPLOYEE PAYROLL RECORDS (CAL. LAB. CODE ? 226, EL SEQ.); ETC.

8/31/2017: SUNIL PATEL'S CROSS-COMPLAINT AGAINST IMEG CORP. FOR: (1) FAILURE TO PERMIT COPYING AND INSPECTION OF EMPLOYEE PAYROLL RECORDS (CAL. LAB. CODE ? 226, EL SEQ.); ETC.

PLAINTIFF IMEG CORP.'S COMPLAINT AGAINST DEFENDANT SUNIL PATEL

7/25/2017: PLAINTIFF IMEG CORP.'S COMPLAINT AGAINST DEFENDANT SUNIL PATEL

Minute Order - MINUTE ORDER (COURT ORDER RE: NOTICE OF RELATED CASE;)

9/15/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: NOTICE OF RELATED CASE;)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: NOTICE OF RELATED CASE;) OF 09/15/2020

9/15/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: NOTICE OF RELATED CASE;) OF 09/15/2020

Reply - REPLY TO PLAINTIFFS OPPOSITION TO MOTION TO COMPEL THE DEPOSITION OF IMEGS PERSON MOST KNOWLEDGEABLE AND REQUEST FOR MONETARY SANCTIONS

6/30/2020: Reply - REPLY TO PLAINTIFFS OPPOSITION TO MOTION TO COMPEL THE DEPOSITION OF IMEGS PERSON MOST KNOWLEDGEABLE AND REQUEST FOR MONETARY SANCTIONS

Opposition - OPPOSITION TO IMEGS MOTION TO COMPEL ARBITRATION

6/16/2020: Opposition - OPPOSITION TO IMEGS MOTION TO COMPEL ARBITRATION

Declaration - DECLARATION OF BROCK J. SERAPHINS IN SUPPORT OF SUNIL PATELS OPPOSITION TO IMEGS MOTION TO COMPEL ARBITRATION

6/16/2020: Declaration - DECLARATION OF BROCK J. SERAPHINS IN SUPPORT OF SUNIL PATELS OPPOSITION TO IMEGS MOTION TO COMPEL ARBITRATION

Declaration - DECLARATION OF KAREN GUEST ISO MOTION TO COMPEL ARBITRATION AND DEMURRER/MOTION TO DISMISS

10/3/2019: Declaration - DECLARATION OF KAREN GUEST ISO MOTION TO COMPEL ARBITRATION AND DEMURRER/MOTION TO DISMISS

Demurrer - with Motion to Strike (CCP 430.10)

10/3/2019: Demurrer - with Motion to Strike (CCP 430.10)

Proof of Service by Mail

8/29/2019: Proof of Service by Mail

Declaration - DECLARATION OF CARLOS BECERRA IN SUPPORT OF SUNIL PATEL'S NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND CROSS.COMPLAINT AGAINST IMEG CORP.

8/2/2019: Declaration - DECLARATION OF CARLOS BECERRA IN SUPPORT OF SUNIL PATEL'S NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND CROSS.COMPLAINT AGAINST IMEG CORP.

Notice of Ruling

8/8/2019: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND PRE-TRI...)

8/8/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND PRE-TRI...)

Separate Statement

5/31/2019: Separate Statement

Declaration - Declaration of Jibraun Riaz in Support of Plaintiff's Ex Parte Application Presenting Stipulation to Continue Trial

12/14/2018: Declaration - Declaration of Jibraun Riaz in Support of Plaintiff's Ex Parte Application Presenting Stipulation to Continue Trial

Notice of Ruling - Plaintiff's Notice of Ruling Re Ex Parte Application Presenting Stipulation for Trial Continuance

12/17/2018: Notice of Ruling - Plaintiff's Notice of Ruling Re Ex Parte Application Presenting Stipulation for Trial Continuance

CIVIL DEPOSIT -

12/1/2017: CIVIL DEPOSIT -

88 More Documents Available

 

Docket Entries

  • 05/17/2021
  • Hearing05/17/2021 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 05/03/2021
  • Hearing05/03/2021 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/19/2020
  • Docketat 09:30 AM in Department 76, Christopher K. Lui, Presiding; Non-Jury Trial - Not Held - Advanced and Vacated

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  • 10/13/2020
  • DocketProof of Service (not Summons and Complaint); Filed by IMEG Corp (Cross-Defendant)

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  • 10/13/2020
  • DocketAnswer; Filed by IMEG Corp (Cross-Defendant)

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  • 10/09/2020
  • Docketat 09:30 AM in Department 76, Christopher K. Lui, Presiding; Trial Setting Conference - Not Held - Rescheduled by Court

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  • 10/09/2020
  • Docketat 09:00 AM in Department 76, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 10/05/2020
  • Docketat 09:30 AM in Department 76, Christopher K. Lui, Presiding; Trial Setting Conference - Not Held - Continued - Court's Motion

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  • 10/05/2020
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 09/18/2020
  • DocketNotice of Ruling; Filed by IMEG Corp (Plaintiff)

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141 More Docket Entries
  • 08/31/2017
  • DocketANSWER TO COMPLAINT

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  • 08/31/2017
  • DocketSunil Patel's Cross-Compliant Against Imeg Corp. for: (1) Failure to Permit Copying and Inspection of Employee Payroll Records (Cal. Lab. Code 226, et seq.) (2) Failure to Permit Copying and Inspection of Employee Personnel Records etc.; Filed by Sunil Patel (Cross-Complainant)

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  • 08/31/2017
  • DocketCross-Complaint; Filed by Sunil Patel (Defendant)

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  • 08/04/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 08/04/2017
  • DocketNotice; Filed by Defendant/Respondent

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  • 08/02/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 08/02/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 07/25/2017
  • DocketComplaint; Filed by IMEG Corp (Plaintiff)

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  • 07/25/2017
  • DocketPLAINTIFF IMEG CORP.'S COMPLAINT AGAINST DEFENDANT SUNIL PATEL

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  • 07/25/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC669383    Hearing Date: July 15, 2020    Dept: 76

Due to the social distancing requirements and other measures implemented by the Court in response to the COVID-19 pandemic, the Court will hold the hearing on this matter telephonically at the time noted on the Court's calendar.  No physical appearances will be entertained at that time.  Any party wishing to appear physically to argue the motion may contact Department 76 to request that a hearing be scheduled.  The Court will then continue the hearing to the earliest available hearing time that allows for appropriate social distancing.

Plaintiff alleges that Defendant Patel, a major shareholder and President of the Mechanical, Electrical and Plumbing Group, instructed his subordinates to intentionally misrepresented the Work In Progress (fees for services that have been performed but not yet billed) at 2016 year-end. This resulted in Defendant receiving bonuses to which he would otherwise not have been paid. On July 15, 2019, Plaintiff voluntarily dismissed the Complaint without prejudice.

Defendant filed a Cross-Complaint alleging that Plaintiff/Cross-Defendant has failed to provide Defendant/Cross-Complainant with complete payroll and personnel records so that he could try to understand why his employment suddenly came to an end. Cross-Defendant also allegedly failed to provide complete wage statements to Cross-Complaint during his employment. Cross-Defendant also seeks indemnity pursuant to applicable Corporations Codes and governing documents.

Plaintiff/Cross-Defendant IMEG Corp. moves to compel arbitration and also demurs to the Cross-Complaint or, in the alternative, moves to dismiss on the grounds of forum non conveniens.

Cross-Complaint Sunil Patel moves to compel the deposition of IMEG’s person most knowledgeable.

TENTATIVE RULING

Cross-Defendant IMEG Corp.’s motion to compel arbitration is GRANTED. The action is STAYED only as to the fourth, fifth and sixth causes of action asserted in the First Amended Cross-Complaint, and will proceed as to the first, second and third causes of action. (Code Civ. Proc., § 1281.4.)

Because the Court has granted the motion to compel arbitration and to stay this action as to the fourth, fifth and sixth causes of action, the demurrer/motion to dismiss is placed OFF-CALENDAR AS MOOT.

Cross-Defendant Sunil Patel’s motion to compel the deposition of IMEG’s person most knowledgeable is GRANTED as to Topics 1 – 5. Patel’s request for sanctions is DENIED. The notice of motion does not identify every person, party and attorney against whom the sanction is sought, as required by CCP § 2023.040.

ANALYSIS

Motion To Compel Arbitration

Request For Judicial Notice

Patel’s request that the Court take judicial notice of IMEG’s request for dismissal filed July 15, 2019 in this action, IMEG’s Opposition to Dismiss the Delaware Petition filed on July 15, 2019 and IMEG’s Petition for an Order Compelling Arbitration in the United States District Court for the District of Delaware filed on March 26, 2020 is GRANTED per Evid. Code § 452(d)(court records). Patel’s request that the Court take judicial notice of IMEG’s AAA Demand and attachment A thereto is DENIED. It would appear that judicial notice may not be taken of records submitted in arbitration proceedings because such records are not court records. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 324-25.)

Discussion

Plaintiff/Cross-Defendant IMEG Corp. moves for an order compelling arbitration of Defendant/Cross-Complainant Sunil Patel’s fourth, fifth and sixth causes of action for statutory indemnity, breach of contract, and declaratory relief asserted in the First Amended Cross-Complaint (“1ACC”), as well as a stay of discovery pending completion of the arbitration.

IMEG’s argument that Patel is equitably estopped from denying that the arbitration agreement in the Merger Agreement between TTG and KJWW applies to Patel’s claims is persuasive.

A nonsignatory plaintiff may be estopped from refusing to arbitrate when he or she asserts claims that are “dependent upon, or inextricably intertwined with,” the underlying contractual obligations of the agreement containing the arbitration clause. (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1239 [123 Cal. Rptr. 3d 429].) “The focus is on the nature of the claims asserted … . [Citations.] That the claims are cast in tort rather than contract does not avoid the arbitration clause.” (Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 272 [25 Cal. Rptr. 3d 440].) Rather, “‘[t]he plaintiff's actual dependence on the underlying contract in making out the claim against the nonsignatory … is … always the sine qua non of an appropriate situation for applying equitable estoppel.’” (Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 229 [92 Cal. Rptr. 3d 534] (Goldman), quoting In re Humana Inc. Managed Care Litigation (11th Cir. 2002) 285 F.3d 971, 976.) “[E]ven if a plaintiff's claims ‘touch matters’ relating to the arbitration agreement, ‘the claims are not arbitrable unless the plaintiff relies on the agreement to establish its cause of action.’” (Goldman, supra, at p. 230, quoting Palmer Ventures LLC v. Deutsche Bank AG (5th Cir. 2007) 254 Fed. Appx. 426, 431–432.) “The fundamental point” is that a party is “not entitled to make use of [a contract containing an arbitration clause] as long as it worked to [his or] her advantage, then attempt to avoid its application in defining the forum in which [his or] her dispute … should be resolved.” (NORCAL Mutual, supra, 84 Cal.App.4th 64, 84.)

(Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 306 [italics in original].)

The fourth cause of action for statutory indemnity is based upon Delaware Corporations Code § 146 and California Corporations Code § 317, and does not rely upon the terms of the Merger Agreement.

The fifth cause of action for breach of contract seeks to enforce the officer and director indemnity provision set forth in the IMEG Articles of Incorporation and Bylaws, and TTGs’s Restated Articles of Incorporation. Patel alleges that he was an officer and employee of IMEG, and thus, would be entitled to seek indemnity under IMEG’s Articles of Incorporation and Bylaws. (1ACC, ¶¶ 79, 80.) This has no apparent connection to the Merger Agreement. Such indemnity agreement would apply to the period during which Patel worked for IMEG, i.e., September 22, 2015[1] through February 1, 2017, the date IMEG terminated Patel’s employment. (1ACC, ¶ 37; IMEG’s Complaint, ¶ 16.) Such indemnity agreement would apply to Patel’s service as an officer and employee of IMEG.

However, as an additional basis for indemnity, Patel also seeks to recover pursuant to the officer and director indemnity provision set forth in TTG’s Restated Articles of Incorporation and Bylaws, made applicable to IMEG via the Merger Agreement. (1ACC, ¶¶ 81 – 83.) From September 22, 2015 through December 31, 2016, Patel served as an officer, director and employee of TTD at IMEG’s direction pursuant to the Merger Agreement. (1AC, ¶ 40.) Thus, it appears that Patel would have to rely on this provision to recover against IMEG to the extent he seeks indemnity for alleged liability as officer, director and employee of TTD. Patel allegedly worked for TTD beginning in 1987 (See IMEG’s Complaint, ¶ 6), through the time TTD became a wholly-owned subsidiary of IMEG in September 2015 (IMEG’s Complaint, ¶ 12), and during the time KJWW Corp. and TTG merged into IMEG, and IMEG became the successor entity to TTD, on January 1, 2017. (1ACC, ¶ 38; IMEG’s Complaint, ¶ 10.)

Because Patel was primarily an employee of TTD during his employment—he was terminated a month after KJWW and TTF merged and IMEG because the successor entity—the primary indemnity agreement upon which Patel must rely is TTG’s Restated Articles of Incorporation and Bylaws, made applicable to IMEG via the Merger Agreement.

The sixth cause of action seeks declaratory relief regarding IMEG’s failure to indemnify pursuant to IMEG’s Bylaws and TTG’s Articles of Incorporation.

Given the foregoing, Patel is equitably estopped from denying the application of the arbitration agreement set forth in the Merger Agreement. (Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 306.)

In this regard, Patel’s argument in the opposition that he is not a party to the merger agreement and did not consent to arbitrate personal claims under the merger agreement does not overcome the application of equitable estoppel against him. As noted above, equitable estoppel applies to permit enforcement of an arbitration clause against a non-signatory.

IMEG’s argument that Patel is judicially estopped from denying the applicability of the arbitration agreement set forth in the Merger Agreement is also persuasive (although not essential).

“ ‘ “Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary.” ’ [Citation.] The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citations.]” (Citations omitted.)

(People v. Castillo (2010) 49 Cal.4th 145, 155.)

Here, Patel successfully convinced the federal court to dismiss IMEG’s action against him based on the exact same arbitration provision in the Merger Agreement. (Commerson Decl., Exh. J.) On the additional ground of judicial estoppel, then, Patel is estopped from denying the applicability of the arbitration provision to his claims in the 1ACC.

IMEG also argues that Patel is required to arbitrate as a non-signatory with an agency relationship with the signatory to the agreement.

There are exceptions to the general rule that a nonsignatory to an agreement cannot be compelled to arbitrate and cannot invoke an agreement to arbitrate, without being a party to the arbitration agreement. (See County of Contra Costa v. Kaiser Foundation Health Plan, Inc. Kaiser Foundation).) A nonsignatory to an agreement to arbitrate may be required to arbitrate, and may invoke arbitration against a party, if a preexisting confidential relationship, such as an agency relationship between the nonsignatory and one of the parties to the arbitration agreement, makes it equitable to impose the duty to arbitrate upon the nonsignatory. (Id.

(Westra v. Marcus & Millichap Real Estate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 765.)

Here, Patel alleges that he was an officer and employee of TTG at IMEG’s request and was sued in that capacity. (1ACC, ¶¶ 80, 84.) Accordingly, it is equitable to require Patel to arbitrate where he seeks indemnity, in part, due to his agency relationship with TTG, a signatory to the Merger Agreement which contains the arbitration clause.

This additional (but not essential) ground for compelling arbitration is persuasive.

IMEG also argues that the arbitration agreement delegates the question of whether a dispute is arbitrable to the arbitrator.

Section 9.18. Arbitration; Submission to Jurisdiction; Consent to Service of Process.

(a) IN THE EVENT THAT A RESOLUTION IS NOT REACHED AMONG THE PARTIES HERETO WITHIN 60 DAYS AFTER WRITTEN NOTICE OF A DISPUTE, THE DISPUTE SHALL BE FINALLY SETTLED BY BINDING ARBITRATION IN WILMINGTON, DELAWARE. SUCH ARBITRATION SHALL BE CONDUCTED IN ENGLISH IN ACCORDANCE WITH THE RULES OF THE [AMERICAN ARBITRATION ASSOCIATION] BY ONE ARBITRATOR APPOINTED IN ACCORDANCE WITH SUCH RULES. THE ARBITRATOR SHALL ALLOW SUCH DISCOVERY AS IS APPROPRIATE TO THE PURPOSES OF ARBITRATION IN ACCOMPLISHING A FAIR, SPEEDY AND COST- EFFECTIVE RESOLUTION OF THE DISPUTE. THE ARBITRATOR SHALL REFERENCE THE FEDERAL RULES OF CIVIL PROCEDURE THEN IN EFFECT IN SETTING THE SCOPE AND TIMING OF DISCOVERY. THE AWARD OF ARBITRATION SHALL BE FINAL AND BINDING UPON THE PARTIES HERETO. THE ARBITRATOR WILL AWARD TO THE PREVAILING PARTY ALL COSTS, FEES AND EXPENSES RELATED TO THE ARBITRATION, INCLUDING REASONABLE FEES AND EXPENSES OF ATTORNEYS, ACCOUNTANTS AND OTHER PROFESSIONALS INCURRED BY THE PREVAILING PARTY, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.

(Merger Agreement, Section 9.18(a), Pages 54-55)(Guest Decl., Exh. A.)(Bold emphasis added.)

The AAA Rules provide at R-7(a) that the arbitrator shall have the power to determine the existence, scope or validity of the arbitration agreement or the arbitrability of any claim or counter claim:

R-7. Jurisdiction

(a)  The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.

(b)  The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause.

(Commerson Decl., Ex. P at R-7(a).)

An incorporation of the AAA rules by reference may be considered a clear and unmistakable delegation of the scope of arbitration to the arbitrator:

When Brinkley signed the RIC, she agreed to the application of the AAA rules to any arbitration of her claims, including the AAA rule that the arbitrator is to decide the gateway issue of whether class arbitration is permissible under the parties' agreement. That rule is thus part of the RIC. In our view, an agreement that incorporates by reference terms that address the question at issue, such as the agreements' incorporation of the AAA rules [*354] in the instant case, is not silent regarding the delegation of arbitrable issues to the arbitrator. The parties' agreement to arbitrate their disputes under a specifically designated set of rules, which in turn provide that the arbitrator shall decide whether the parties' arbitration agreement permits class arbitration, is “‘clear and unmistakable’” evidence that the parties intended to delegate the resolution of that question to the arbitrator. (Granite Rock Co. v. Teamsters, supra, 561 U.S. at p. 297, fn. 5.)

(Brinkley v. Monterey Financial Services, Inc. (2015) 242 Cal. App. 4th 314, 353-54.)

Accordingly, the Court finds that Cross-Complainant Patel is required to arbitrate his fourth, fifth and sixth causes of action in the First Amended Cross-Complaint, including the existence, scope or validity of the arbitration agreement.

As such, Patel’s argument that the indemnity claims are not covered by the arbitration agreement is an issue that has been delegated to the arbitrator.

The burden shifts to Patel to demonstrate why the arbitration agreement, and in particular the delegation clause, should not be enforced against him.

Patel argues that IMEG waived any right to arbitration Patel’s indemnity claims by prosecuting for two years the action IMEG filed which gave rise to the indemnity claims. This argument is not persuasive. A finding of waiver requires that the party arguing that a waiver occurred shows that the party seeking arbitration has previously taken steps inconsistent with an intent to invoke arbitration, has unreasonably delayed in seeking arbitration or has acted in bad faith or with willful misconduct. (Adolph v. Coastal Auto Sales, Inc. (2010) 184 Cal.App.4th 1443,1449.) There has been no such showing on the part of IMEG relative to Patel’s First Amended Cross-Complaint in this action.

Patel admits he did not assert his indemnity claims until he filed his First Amended Cross-Complaint on September 3, 2019, after IMEG dismissed it action on July 15, 2019. IMEG cannot be said to have waived the right to arbitrate the claims asserted in the First Amended Cross-Complaint before they were even asserted. Indeed, a cross-complaint is considered a separate action from the action commenced by the complaint. (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 134.)

In the Opposition, Plaintiff does not challenge the delegation clause as unconscionable, but rather, challenges the entire Arbitration Agreement as unconscionable. As such, the question of enforceability, including whether the Agreement is unconscionable, is delegated to the arbitrator. (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1559-60.)

A delegation clause requires issues of interpretation and enforceability of an arbitration agreement to be resolved by the arbitrator. Delegation clauses have the potential to create problems of circularity. For example, suppose an arbitration agreement delegates the issue of enforceability to the arbitrator. If the arbitrator concludes that the arbitration agreement is, in fact, not enforceable, this would mean that the entire agreement, including the delegation clause, is unenforceable—a finding that would undermine the arbitrator's jurisdiction to make that finding in the first place. For this reason, courts have treated the delegation clause as a separate agreement to arbitrate solely the issues of enforceability. In other words, courts have separately enforced an enforceable delegation clause; thus, it has been held that whether the arbitration agreement as a whole is ultimately held to be unenforceable will have no bearing on the enforcement of the delegation clause itself. (Bruni, supra, 160 Cal.App.4th at p. 1287.)

For this reason, when a party is claiming that an arbitration agreement is unenforceable, it is important to determine whether the party is making a specific challenge to the enforceability of the delegation clause or is simply arguing that the agreement as a whole is unenforceable. If the party's challenge is directed to the agreement as a whole—even if it applies equally [*1560]  to the delegation clause—the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable. In contrast, if the party is making a specific challenge to the delegation clause, the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first determines the delegation clause is enforceable). (Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70 [177 L.Ed.2d 403, 130 S.Ct. 2772, 2778].)

(Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1559-60 [bold emphasis and underlining added].)

Accordingly, Patel has not met his burden of demonstrating that the arbitration clause should not be enforced.

The motion to compel arbitration is GRANTED. This litigation is ordered stayed pending arbitration pursuant to CCP § 1281.4.

Accordingly, the motion to compel arbitration is GRANTED. The action is STAYED only as to the fourth, fifth and sixth causes of action asserted in the First Amended Cross-Complaint, and will proceed as to the first, second and third causes of action. “If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only.” (Code Civ. Proc., § 1281.4.)

Demurrer/Motion To Dismiss

Per the motion to compel arbitration and the demurrer/motion to dismiss, this motion need not be considered if the Court grants the motion to compel arbitration. Because the Court has granted the motion to compel arbitration and to stay this action, the demurrer/motion to dismiss is placed OFF-CALENDAR AS MOOT.

Motion To Compel Deposition

Patel’s Evidentiary Objections

Declaration of Scott R. Commerson

No. 1: OVERRULED. Objections do not apply to entire declaration.

No. 2 – 22: SUSTAINED. Irrelevant.

Discussion

Cross-Complaint Patel moves to compel the deposition of IMEG’s person most knowledgeable on the following topics related to his cross-complaint in the amended deposition notice:

u Topic 1: Wage Statements issued to Patel by IMEG.

u Topic 2: IMEG’s response to Patel’s request for payroll and personnel records.

u Topic 3: IMEG’s affirmative defenses to the Cross-Complaint in this action.

u Topic 4: IMEG’s polic(ies) regarding the provision of accurate itemized pay statements to employees in 2017.

u Topic 5: IMEG’s procedure(s) regarding the provision of accurate itemized pay statements to employees in 2016

Cross-Complainant also requests sanctions.

IMEG has failed to provide any dates for the deposition of its person most knowledgeable (“PMK”) and has failed to produce a PMK without serving a valid objection. (Becerra Decl., ¶ IMEG has taken the position that there is no need for a PMK deposition based on Patel’s request that IMEG stipulate to certain facts pertaining to the Cross-Complaint to obviate the need for further discovery and streamline the trial. However, the parties could not agree on the substance of a proposed factual stipulation.

CCP § 2025.450(b) & (b) provide:

(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410[2], fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

Patel’s counsel has submitted a meet and confer declaration. (Declaration of Carlos Becerra, ¶¶ 6 – 12; Exhs. C- G.)

Because Patel is not seeking production of any documents, he need not demonstrated good cause for production.

IMEG served written objections to the Amended Notice of Deposition. (Becerra Decl., Exh. E.) These were not valid objections under CP § 2025.410. (See footnote 2.) Rather, IMEG’s objections go to whether the deposition topic is necessary and whether it seeks relevant information.

Serving written objections does not stay the deposition or excuse attendance. If such objections are determined by the Court to be valid, this merely precludes using the deposition testimony as evidence pursuant to CCP § 2025.620. (Code Civ. Proc., § 2025.410.)

(a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(b) If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.

(c) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.

(Code Civ. Proc., § 2025.410 [bold emphasis and underlining added.])

CCP § 2025.280(a) provides:

(a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.

(Bold emphasis added.)

CCP § 2025.230 provides:

If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.

(Bold emphasis and underlining added.)

Objections to the or relevance of the deposition categories are OVERRULED as without merit or as unjustified. CCP § 2025.460 sets forth the objections which must be raised at deposition otherwise they are waived:

(a) The protection of information from discovery on the ground that it is privileged or that it is a protected work product under Chapter 4 (commencing with Section 2018.010) is waived unless a specific objection to its disclosure is timely made during the deposition. (b) Errors and irregularities of any kind occurring at the oral examination that might be cured if promptly presented are waived unless a specific objection to them is timely made during the deposition. These errors and irregularities include, but are not limited to, those relating to the manner of taking the deposition, to the oath or affirmation administered, to the conduct of a party, attorney, deponent, or deposition officer, or to the form of any question or answer. Unless the objecting party demands that the taking of the deposition be suspended to permit a motion for a protective order under Sections 2025.420 and 2025.470, the deposition shall proceed subject to the objection. (c) Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition.

(Code Civ. Proc., § 2025.460(a) – (c)[bold emphasis added].)

A deponent may not refuse to answer questions on the ground of relevance or based on the form of the question. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014-15.)

[E]ven were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition. Code of Civil Procedure section 2025, subdivision (m), governing deposition objections, divides objectionable questions into three categories. Subdivision (m)(1) applies to questions delving into privileged areas and provides that to protect privileged information, "a specific objection to its disclosure" must be "timely made during the deposition." Subdivision (m)(1) thus sanctions use of an objection coupled with an instruction not to answer in order to protect privileged information from disclosure. Code of Civil Procedure section 2025, subdivision (m)(2) applies to questions containing errors or irregularities that might be cured if promptly brought to counsel's attention, such as errors in the form of the question. Objection to these types of missteps is "waived unless a specific objection to them is timely made during the deposition." Subdivision (m)(2) makes clear that counsel should not instruct the deponent not to answer such objectionable questions, expressly stating that "unless the objecting party demand the taking of the deposition be suspended to permit a motion for a protective order under subdivision (n), the deposition shall proceed subject to the objection." Code of Civil Procedure section 2025, subdivision (m)(3) governs inquiry into irrelevant and immaterial matters and provides: "Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition." (Italics added.) In other words, the deponent's counsel should not even raise an objection to a question counsel believes will elicit irrelevant testimony at the deposition. Relevance objections should be held in abeyance until an attempt is made to use the testimony at trial. Code of Civil Procedure section 2025, subdivision (n) goes on to state that the deposition may be suspended if "any party attending the deposition or the deponent demands the taking of testimony be suspended to enable that party or deponent to move for a protective order on the ground that the  [*1015]  examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party." Deposing counsel's insistence on inquiring into irrelevant areas could justify suspension under this standard, but only if it reaches the point where it could legitimately be said that counsel's intent was to harass, annoy, embarrass, or oppress. Taken as a whole, these provisions clearly contemplate that deponents not be prevented by counsel from answering a question unless it pertains to privileged matters or deposing counsel's conduct has reached a stage where suspension is warranted. The fact that suspension is available only where an interrogation into improper matters reveals an underlying purpose to harass, annoy, etc., indicates that witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.

(Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014-15 (bold emphasis and underlining added).)

IMEG is required to designate and produce a PMK on the noticed deposition topics, absent having obtained a protective order pursuant to CCP § 2025.420[3] that a PMK need not be produced on certain topics. The Court declines to issue a protective order based upon the request in the Opposition at Page 9. IMEG was required to bring its own noticed-motion for a protective order.

In its Opposition, IMEG claims that Patel’s Labor Code Cross-Claims have been resolved because IMEG has admitted liability and offered to stipulate to the maximum penalties available. IMEG indicates that it issued Patel a check for the maximum penalties allowed under the law, $1,750, on August 22, 2019. IMEG claims that this renders discovery unnecessary to determine whether Patel is entitled to recover attorney’s fees.

Nonetheless, until Patel accepts a settlement offer, he is entitled to continue to litigation the claims in his Cross-Complaint. The fact that the parties are negotiating a settlement does not excuse a party from complying with its statutory discovery obligations. If Patel is engaging in unnecessary discovery, and thus incurring attorney’s fees unreasonably, this may affect the amount of attorney’s fees he might ultimately recover.

Accordingly, the motion to compel the deposition of IMEG’s person most knowledgeable is GRANTED as to Topics 1 – 5.

Sanctions

Patel’s request for sanctions is DENIED. The notice of motion does not identify every person, party and attorney against whom the sanction is sought, as required by CCP § 2023.040.


[1] IMEG’s Complaint clarifies that TTG became a wholly-owned subsidiary of IMEG in September 2015. Patel admits in the 1ACC that the did not become an employee of IMEG until January 1, 2017. (1ACC, ¶ 12.)

[2] There is no indication that IMEG served a valid objection under CCP § 2025.410. Defendant’s objection is attached as Exh. E to the Becerra Declaration. It does not appear to be an objection made under CCP § 2025.410, which addresses defective notice of deposition that does not comply with Article 2 (CCP § 2025.210 et seq.) See CCP § 2025.410(a). The types of objections contemplated by CCP § 2025.210 et seq., deal with procedural requirements such as when a defendant or plaintiff may serve a deposition notice (CCP § 2025.210), the contents required to be included in a deposition notice (CCP §§ 2025.220, 2025.230), to whom notice of the deposition must be given (CCP § 2025.240), the location of the deposition (CCP §§ 2025.250, 2025.260), the number of days required to be given in advance of the deposition (CCP § 2025.270), and the manner of service upon party deponents (CCP § 2025.280).

[3]

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

. . .

(9) That certain matters not be inquired into.

(10) That the scope of the examination be limited to certain matters.

(11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.

. . .

(CCP § 2025.420(a) & (b).)