Response Reply

Cal. Super. - 6th Dist.October 29, 2018

UI-hUJN \OOOQO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GAUTAM DUTTA, ESQ. (State Bar N0. 199326) Business, Energy, and Election Law, PC 1017 E1 Camino Real # 504 Redwood City, CA 94063 Telephone: 415.236.2048; Fax: 213.405.2416 Email: Dutta@BEELawFirm.com Attorneys for Plaintiff HAONING RICHTER Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/15/2019 1:16 PM Reviewed By: F. Miller Case #1 8CV3371 94 Envelope: 3267544 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA HAONING RICHTER, Plaintiff, vs. ORACLE AMERICA, INC., et a1., Defendants. I. for they (1) fail to refute that this Court has continuing jurisdiction to hear Ms. Richter’s Petition to stay court-ordered arbitration; (2) erroneously claim that Ms. Richter was required t0 bypass this Court and directly seek a stay from the Court 0f Appeal; (3) concede that Ms. Richter has raised a substantial issue 0n appeal; and (4) fails to refute that Ms. Richter Will suffer irreparable harm if she is forced to arbitrate claims that may later be held to be un-arbitrable as a matter of CASE NO. 18-CV-337 1 94 PLAINTIFF HAONING RICHTER’S REPLY IN SUPPORT OF HER PETITION FOR STAY OF THE COURT’S MAY 3, 2019 ARBITRATION ORDER Hearing Date: Aug. 16, 2019, 2:30 pm Dept: 8 (Hon. Sunil R. Kulkarni) MEMORANDUM OF POINTS AND AUTHORITIES Introduction Ironically, Defendants’ Opposition only strengthens Ms. Richter’s entitlement to a stay, 1aw.1 Accordingly, the interest ofjustice demands that a stay be granted. 1 The Court of Appeal had not ruled on Ms. Richter’s pending Writ Petition as of the close 0f business yesterday. Aug. 15, 2019 Dutta Decl. 1T6. F. Ajiller REPLY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. It Is Unrefuted That This Court Has Continuing Jurisdiction First, it is unrefuted that this Court has continuing jurisdiction to hear Ms. Richter’s Petition t0 stay court-ordered arbitration. After an arbitration petition has been filed, a trial court “retains a separate, limitedjurisdiction over the contractual arbitration which was the subject of a [CCP] section 1281.2 petition” under CCP §1292.6.2 As the Court 0fAppeal admonished in Valsan Partners Ltd. P ’ship v. Calcor Space Facility, CCP §1292.6 authorizes any petition brought under CCP Title 9.3 As Valsan made clear, CCP §1281.4 is not only part ofCCP Title 9, but authorizes petitions “to stay arbitration”.4 Accordingly, the trial court has the continuing jurisdiction t0 hear petitions “t0 stay arbitration” under CCP §1281.4. III. Ms. Richter Was Not Required t0 Directly Seek a Stay from the Court 0f Appeal Contrary to Defendants’ claim, Ms. Richter was not required t0 bypass this Court and directly seek a stay from the Court 0f Appeal. In fact, the very Rule that Defendants cite makes it clear that a party should seek a stay from the trial court first before seeking relief from the Court of Appeal: “If the petition [for stay] could have beenfiledfirst in a lower court, it must explain ”5 Because this Court hasWhy the reviewing court should issue the writ as an original matter. continuing jurisdiction to hear this Petition, it was appropriate for Ms. Richter t0 seek a stay from this Court first. IV. Defendants Concede That Ms. Richter Has Raised a Substantial Issue 0n Appeal Because they do not even address the issue raised by Ms. Richter’s Writ Petition, Defendants have conceded that Ms. Richter has raised a substantial issue 0n appeal. V. It Is Unrefuted That Ms. Richter Will Suffer Irreparable Harm Unless a Stay Is Granted Finally, it is unrefuted that Ms. Richter Will suffer irreparable harm unless a stay is granted. Without a stay, Ms. Richter would be forced to litigate her non-PAGA claims in an 2 Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 45 (italics added). 3 Valsan Partners LimitedP ’ship v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 820. 4 Valsan, 25 Ca1.App.4th at 820 (citing CCP §1281.4). 5 CRC 8.486(a)(1) (italics added). REPLY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arbitral forum where she may not “belong”.6 Furthermore, without a stay Defendants would improperly gain what the Court 0f Appeal would call an “unjustified advantage”7 - for Ms. Richter would then be forced t0 continue tapping into her life savings in order t0 litigate an arbitral proceeding that may be barred as a matter of law. Just yesterday, JAMS’S Case Manager asked the Parties t0 apprise him, n0 later than tomorrow (Aug. 16, 2019), of their availability for the initial conference call With the arbitrator.8 Furthermore, there can be n0 question that the balance of equities favors Ms. Richter. If a stay is granted, the status quo Will be preserved, and neither side Will suffer any injury. Indeed, neither Ms. Richter nor Defendants Will need t0 spend any time 0r money t0 arbitrate claims that may be un-arbitrable as a matter 0f law. VI. Conclusion It is beyond question that Ms. Richter - who has raised a substantial issue 0n appeal - will suffer irreparable harm unless a stay is granted.9 Accordingly, the interest ofjustice demands that the Arbitration Order be swiftly stayed. 6 See Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1050 (2019) review denied. The non-binding California authority invoked by Defendants does not apply here. Camping Const. C0. v. Dist. Council oflron Workers discussed arbitration in connection with a collective bargaining agreement. where “fa1rbitration of disagreements arising under a collective-bargaining agreement is regarded as a continuation 0fthe collective- bargainingprocess[.]” (9th Cir. 1990) 915 F.2d 1333, 1349 (italics added). In a case where n0 stay was requested, a federal trial court cited that inapplicable part of Camping. See Ressler v. Vietnam Maritime Communication & Elecs. C0 (CD. Cal. Aug. 9, 2010) 2:10-CV-03836-PA-JCG, 2010 WL 11601041, at *5. 7 See City ofHollister v. Monterey Ins. C0. (2008) 165 Cal.App.4th 455, 482-83 gitalics added). Aug. 15, 2019 Dutta Decl. 1W3, 4 & Exh. 1. 9 See CRC 8.1 16 (requirements t0 obtain writ 0f supersedeas from the Court of Appeal). _ 3 _ REPLY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: Aug. 15, 2019 BUSINESS, ENERGY, AND ELECTION LAW, PC By: /s/ Gautam Dutta GAUTAM DUTTA, ESQ. Attorneys for Plaintiff HAONING RICHTER REPLY