Kwan v. Superior Court for the City and County of San Francisco

DispositionDescription: Petition summarily denied by order; Disposition Type: Final BY THE COURT:* The petition for writ of mandate is denied, and the previously issued stay is dissolved. While not intended to represent an exhaustive statement of reasoning, the court finds it appropriate to disclose some of the reasons for its decision. The petition's prayer for relief seeks mandate relief as to orders issued on March 28, 2022 and July 27, 2022. As for petitioner's challenge to the March 28, 2022 order compelling arbitration and staying proceedings, the petition was filed on August 12, 2022, significantly more than sixty (60) days after the superior court rendered the challenged order. The petition does not include any affirmative allegations about the petition's timeliness, much less articulate extraordinary circumstances justifying this delay. (Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701; Aronow v. Superior Court (2022) 76 Cal.App.5th 865, 871, fn. 2 [similar untimeliness issue]; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2022) 15:23a; see also Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 497, fn. 4 [writ petitioner bears the burden of presenting a procedurally and substantively adequate petition].) Additionally, the record provided by petitioner concerning the proceedings leading to the March 28, 2022 order is incomplete. (Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186-187; Cal. Rules of Court, rule 8.486(b)(1)(B) & (C).) Furthermore, petitioner has not met her burden to demonstrate an entitlement to writ relief regarding the superior court's July 27, 2022 order denying the motion to vacate the March 28, 2022 order. Among other reasons for this conclusion: (1) The unconscionability issues were resolved against petitioner in the March 28, 2022 order, which was not timely challenged in this court. The petition does not persuasively demonstrate the superior court erred in determining the intervening fee waiver was insufficient to justify vacating the March 28, 2022 order. (See, e.g., Civ. Code, 1670.5, subd. (a) [unconscionability is viewed at the time the contract was made]; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) (2) Moreover, the court is not persuaded that petitioner's claim about the possibility of inconsistent rulings (Code Civ. Proc., 1281.2, subd. (c)) was squarely raised in opposition to the petition to compel arbitration, or that those issues should nevertheless be considered for the reasons petitioner advances. (3) Finally, petitioner contends the order compelling arbitration violates her right to access to fair and affordable justice, since she has been found entitled to fee waivers. While this court is sympathetic to that argument, the remedy sought in the petition is reversal of the order 2 compelling arbitration, instead of the remedies outlined in Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 95-96 and Aronow v. Superior Court (2022) 76 Cal.App.5th 865, 876-880, 883-885. In fact, the petition specifically disclaims any request for the relief outlined in those cases: "The recent Aronow decision establishes the courts' duty to ensure access to justice, although the specific remedy authorized in that case is inadequate here." (Petn., p. 15 [emphasis added].) Since the remedy sought in the petition on this issue does not appear proper, the denial of this petition is without prejudice to petitioner filing a motion in the superior court seeking appropriate relief under the foregoing authorities. * Before Simons, Acting P.J., Burns, J. and Wiseman, J. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)

DocketDescription: Case complete.

DocketDescription: Order denying petition filed.; Notes: BY THE COURT:* The petition for writ of mandate is denied, and the previously issued stay is dissolved. While not intended to represent an exhaustive statement of reasoning, the court finds it appropriate to disclose some of the reasons for its decision. The petition's prayer for relief seeks mandate relief as to orders issued on March 28, 2022 and July 27, 2022. As for petitioner's challenge to the March 28, 2022 order compelling arbitration and staying proceedings, the petition was filed on August 12, 2022, significantly more than sixty (60) days after the superior court rendered the challenged order. The petition does not include any affirmative allegations about the petition's timeliness, much less articulate extraordinary circumstances justifying this delay. (Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701; Aronow v. Superior Court (2022) 76 Cal.App.5th 865, 871, fn. 2 [similar untimeliness issue]; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2022) 15:23a; see also Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 497, fn. 4 [writ petitioner bears the burden of presenting a procedurally and substantively adequate petition].) Additionally, the record provided by petitioner concerning the proceedings leading to the March 28, 2022 order is incomplete. (Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186-187; Cal. Rules of Court, rule 8.486(b)(1)(B) & (C).) Furthermore, petitioner has not met her burden to demonstrate an entitlement to writ relief regarding the superior court's July 27, 2022 order denying the motion to vacate the March 28, 2022 order. Among other reasons for this conclusion: (1) The unconscionability issues were resolved against petitioner in the March 28, 2022 order, which was not timely challenged in this court. The petition does not persuasively demonstrate the superior court erred in determining the intervening fee waiver was insufficient to justify vacating the March 28, 2022 order. (See, e.g., Civ. Code, 1670.5, subd. (a) [unconscionability is viewed at the time the contract was made]; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) (2) Moreover, the court is not persuaded that petitioner's claim about the possibility of inconsistent rulings (Code Civ. Proc., 1281.2, subd. (c)) was squarely raised in opposition to the petition to compel arbitration, or that those issues should nevertheless be considered for the reasons petitioner advances. (3) Finally, petitioner contends the order compelling arbitration violates her right to access to fair and affordable justice, since she has been found entitled to fee waivers. While this court is sympathetic to that argument, the remedy sought in the petition is reversal of the order compelling arbitration, instead of the remedies outlined in Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 95-96 and Aronow v. Superior Court (2022) 76 Cal.App.5th 865, 876-880, 883-885. In fact, the petition specifically disclaims any request for the relief outlined in those cases: "The recent Aronow decision establishes the courts' duty to ensure access to justice, although the specific remedy authorized in that case is inadequate here." (Petn., p. 15 [emphasis added].) Since the remedy sought in the petition on this issue does not appear proper, the denial of this petition is without prejudice to petitioner filing a motion in the superior court seeking appropriate relief under the foregoing authorities. * Before Simons, Acting P.J., Burns, J. and Wiseman, J. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)

DocketDescription: Exhibits lodged.; Notes: Corrected exhbits; from Paul Steiner and Gary Garfinkle, attorneys for petitioner Kwan

DocketDescription: Reply filed to:; Notes: Reply to preliminary opposition to petition; from Gary Garfinkle and Paul Steiner, attorneys for petitioner Kwan

DocketDescription: Order filed.; Notes: BY THE COURT:* Petitioner's stay request is granted in part. Pending further consideration of petitioner's writ petition, proceedings in furtherance of the compelled arbitration, including the arbitrator selection process outlined in respondent's August 25, 2022 order, are temporarily stayed until further order of this court. Any reply to the preliminary opposition filed on August 22, 2022 shall be due on or before September 1, 2022. (Cal. Rules of Court, rule 8.487(a)(3).) * Before Simons, Acting P.J., Burns, J. and Wiseman, J. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)

DocketDescription: Request filed to:; Notes: Request for immediate stay of order for appointment of arbitrator; from Gary Garfinkle and Paul Steiner, attorneys for petitioner Kwan

DocketDescription: Opposition filed.; Notes: PRELIMINARY OPPOSITION TO PETITION FOR WRIT OF MANDATE OR OTHER APPROPRIATE RELIEF From Hoge Fenton Jones & Appel, attorneys for real parties Ellenberg et al

DocketDescription: Order waiving filing fee.; Notes: For petitioner Kwan

DocketDescription: Application for waiver of filing fee filed.

DocketDescription: Filed proof of service.

DocketDescription: Exhibits lodged.; Notes: Exhibits A - Q

DocketDescription: Filed petition for writ of:; Notes: Mandate or Other Appropriate Relief

DocketTrial Court Name: San Francisco County Superior Court - Main; County: San Francisco; Trial Court Case Number: CGC21594460; Trial Court Judge: Ulmer, Jr., Richard