This case was last updated from Los Angeles County Superior Courts on 05/20/2022 at 07:35:32 (UTC).

RICK ESPINDOLA, AN INDIVIDUAL VS WISMETTAC ASIAN FOODS, INC.

Case Summary

On 05/20/2021 RICK ESPINDOLA, AN INDIVIDUAL filed a Contract - Other Contract lawsuit against WISMETTAC ASIAN FOODS, 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 JON R. TAKASUGI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8995

  • Filing Date:

    05/20/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

ESPINDOLA RICK AN INDIVIDUAL

Defendant

WISMETTAC ASIAN FOODS INC.

Attorney/Law Firm Details

Plaintiff Attorneys

PRINCE DAVID LOUIS

PRINCE MILES LOUIS

Defendant Attorney

DHAMODARAN KISHANIAH

 

Court Documents

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

3/30/2022: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Proof of Service by Mail

9/14/2021: Proof of Service by Mail

Declaration - DECLARATION OF MILES L. PRINCE

9/14/2021: Declaration - DECLARATION OF MILES L. PRINCE

Opposition - OPPOSITION TO DEFENDANT'S DEMURRER TO THE COMPLAINT

9/14/2021: Opposition - OPPOSITION TO DEFENDANT'S DEMURRER TO THE COMPLAINT

Request for Judicial Notice

9/14/2021: Request for Judicial Notice

Reply - REPLY DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER

9/17/2021: Reply - REPLY DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER

Request for Judicial Notice

9/17/2021: Request for Judicial Notice

Request for Judicial Notice

9/17/2021: Request for Judicial Notice

Reply - REPLY DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER

9/17/2021: Reply - REPLY DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

9/24/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

9/24/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: RECEIPT OF COURT REPORTER TRAN...)

10/6/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: RECEIPT OF COURT REPORTER TRAN...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 10/14/2021

10/14/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 10/14/2021

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

10/14/2021: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Amended Complaint - AMENDED COMPLAINT (1ST)

10/18/2021: Amended Complaint - AMENDED COMPLAINT (1ST)

Answer - ANSWER DEFENDANT WISMETTAC ASIAN FOODS, INC.'S ANSWER TO PLAINTIFF RICK ESPINDOLA'S FIRST AMENDED COMPLAINT

11/22/2021: Answer - ANSWER DEFENDANT WISMETTAC ASIAN FOODS, INC.'S ANSWER TO PLAINTIFF RICK ESPINDOLA'S FIRST AMENDED COMPLAINT

Notice Re: Continuance of Hearing and Order

2/28/2022: Notice Re: Continuance of Hearing and Order

Case Management Statement

9/8/2021: Case Management Statement

18 More Documents Available

 

Docket Entries

  • 10/17/2022
  • Hearing10/17/2022 at 10:00 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 10/06/2022
  • Hearing10/06/2022 at 10:00 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/12/2022
  • Hearing08/12/2022 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 03/30/2022
  • Docketat 08:30 AM in Department 17, Jon R. Takasugi, Presiding; Case Management Conference - Held - Continued

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  • 03/30/2022
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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  • 03/09/2022
  • Docketat 08:30 AM in Department 17, Jon R. Takasugi, Presiding; Case Management Conference - Not Held - Rescheduled by Court

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  • 02/28/2022
  • DocketNotice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 11/22/2021
  • DocketAnswer (Defendant Wismettac Asian Foods, Inc.'s Answer to Plaintiff Rick Espindola's First Amended Complaint); Filed by Wismettac Asian Foods, Inc. (Defendant)

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  • 10/18/2021
  • DocketAmended Complaint ( (1st)); Filed by RICK ESPINDOLA, an individual (Plaintiff)

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  • 10/14/2021
  • Docketat 09:18 AM in Department 17, Jon R. Takasugi, Presiding; Ruling on Submitted Matter

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20 More Docket Entries
  • 07/14/2021
  • DocketDemurrer - without Motion to Strike; Filed by Wismettac Asian Foods, Inc. (Defendant)

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  • 07/14/2021
  • DocketDeclaration (ISO Defendant's Demurrer); Filed by Wismettac Asian Foods, Inc. (Defendant)

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  • 07/14/2021
  • DocketRequest for Judicial Notice; Filed by Wismettac Asian Foods, Inc. (Defendant)

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  • 07/14/2021
  • DocketDeclaration (ISO Defendant's Demurrer); Filed by Wismettac Asian Foods, Inc. (Defendant)

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  • 06/16/2021
  • DocketNotice and Acknowledgment of Receipt; Filed by RICK ESPINDOLA, an individual (Plaintiff)

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  • 05/28/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/20/2021
  • DocketSummons (on Complaint); Filed by RICK ESPINDOLA, an individual (Plaintiff)

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  • 05/20/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 05/20/2021
  • DocketComplaint; Filed by RICK ESPINDOLA, an individual (Plaintiff)

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  • 05/20/2021
  • DocketCivil Case Cover Sheet; Filed by RICK ESPINDOLA, an individual (Plaintiff)

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Tentative Rulings

Case Number: *******8995 Hearing Date: September 24, 2021 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

RICK ESPINDOLA

vs.

WISMETTAC ASIAN FOODS, INC.

Case No.: *******8995

Hearing Date: September 24, 2021

Defendant’s demurrer to the first and second cause of action is OVERRULED.

On 5/20/2021, Plaintiff Rick Espindola (Plaintiff) filed suit against Wismettac Asian Foods, Inc. (Defendant), alleging: (1) violation of CCP section 1281.98; and (2) breach of contract.

Now, Defendant demurs to Plaintiff’s Complaint in its entirety.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. ; (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ;When considering demurrers, courts read the allegations liberally and in context. ; (Taylor v. City of Los Angeles Dept. of Water and Power ;(2006) 144 Cal.App.4th 1216, 1228.) ; In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. ; (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) ; “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. ; Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” ; (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) ; “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” ; (Hahn, supra, 147 Cal.App.4th at p. 747.)

Factual Background

This action concerns the failed arbitration of the parties in a previous dispute (Previous Action). Specifically, the parties agreed to arbitrate the Previous Dispute, and an invoice was issued by JAMS to Defendant for the arbitrator fees. While there is dispute about whether or not Defendant was, in fact, late paying the arbitration fees, the scheduled arbitration hearing was cancelled and Plaintiff withdrew his claim from arbitration pursuant to section 1281.98. Now, Plaintiff seeks to recover an award of attorneys fees and costs associated with the abandoned arbitration.

Discussion

Defendant argues that Plaintiff’s claims are time-barred and barred by the doctrine of res judicata. Defendant further argues that Plaintiff’s first cause of action is unconstitutional and preempted by the Federal Arbitration Act (FAA).

I. Time-Barred

Defendant argues that Plaintiff’s claim is time-barred because there is a one-year statute of limitation for claims arising out of mandatory civil penalty claims.

CCP section 340, subdivision (a) provides a one-year statute of limitations for “(a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.”

In determining which statute of limitations applies to a civil penalty, the key question is whether the penalty is mandatory or discretionary. (The TJX Companies, Inc. v. Superior Court (2008) 163 Cal.App.4th 80.) In The TJX Companies, Inc, the Court found that a statutory prohibition on businesses requiring customers who use credit cards to provide personal identification information was mandatory because the imposition of the penalty award was mandatory, even though the amount of the penalty award for the violation was discretionary. (The TJX Companies, Inc supra, 163 Cal.App.4th at p. 86.) Accordingly, the one year statute of limitation applied to the claim there.

Here, CCP section 1281.98 provides that in an employment or consumer arbitration where the drafting party is in material breach of the arbitration agreement, the drafting party must:

(4) Pay the drafting party's fees and proceed with the arbitration proceeding. As part of the award, the employee or consumer shall recover all arbitration fees paid on behalf of the drafting party without regard to any findings on the merits in the underlying arbitration.

(c) If the employee or consumer withdraws the claim from arbitration and proceeds in a court of appropriate jurisdiction pursuant to paragraph (1) of subdivision (b), both of the following apply:

(1) The employee or consumer may bring a motion, or a separate action, to recover all attorney's fees and all costs associated with the abandoned arbitration proceeding. The recovery of arbitration fees, interest, and related attorney's fees shall be without regard to any findings on the merits in the underlying action or arbitration.

(2) The court shall impose sanctions on the drafting party in accordance with Section 1281.99.

Defendant argues that the use of “shall” in CCP section 1281.98, subdivision (c)(2) demonstrates that Plaintiff is seeking to recover mandatory penalties. (See The TJX Companies, Inc supra, 163 Cal.App.4th at p. 86 [noting that “[t]he statutory phrase ‘shall be subject to’ imposes a mandatory obligation.])

However, Plaintiff is moving pursuant to CCP section 1281.98, subdivision (c)(1) which does not contain the mandatory award language included in subdivision (c)(2) with respect to the fee award. Defendant has not presented any principles of statutory construction which would indicate that the Court may apply the mandatory language in one section to another section for purposes of imposing a one-year statute of limitations.

Moreover, even assuming the mandatory language in subdivision (c)(2) applied with equal force to subdivision (c)(1), the statutory language would still suggest it is not a penalty. The provision allows the employee or consumer to cover all fees and costs actually lost by the litigant, and thus is not a penalty. (See Clark v. Superior Court (2010) 50 Cal.4th 605, 614.) (“[A] penalty is a recovery without reference to the actual damage sustained. […] Penalties provide for recovery of damages additional to actual losses incurred, such as double or treble damages.”.)

The Court is similarly unpersuaded that Plaintiff’s claim is barred by the doctrine of res judicata. Section 1281.98, subdivision (c)(2) expressly confers the power to file a “separate action” to recover all attorneys fees and costs associated with the abandoned arbitration proceeding. This provision would be meaningless if a litigant was expected to recoup any money owed from abandoned arbitration during the initial court proceeding.

Finally, the Court concludes that Plaintiff’s Complaint is not preempted by federal law. As the District Court noted in Dekker v. Vivant Solar, Inc. (2020) 479 F.Supp.3d 834 (emphasis removed), “section 1281.97 [et seq.] is not ‘to the contrary’ of [federal policy favoring arbitration]. Rather, in enacting the statute it was the intent of the legislature to better enforce the federal policy of fast and inexpensive dispute resolution.”

While it may be that Defendant, in fact, was not late in paying arbitration fees as it contends, and that Plaintiff is not entitled to recover under CCP section 1281.98, subdivision (c)(1), this is a factual determination not properly decided at this stage.

Based on the foregoing, Defendant’s demurrer to Plaintiff’s first and second causes of action is overruled.

It is so ordered.

Dated: September , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.


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