Divina Rosal vs. Jp Senior Homes, LLC.

Motion to Set Aside

Cal. Super. - 4th Dist.May 24, 2017

NO 0 N N lx W N N R N N N N N N DN mm e m e m em b t e t mt e t se d ee 0 N N N nn lA W N = O N D 0 N N R W Oo Edward W. Choi, State Bar No. 211334 Paul M. Yi, Esq. SBN 207867 ELECTRONICALLY FILED Superior Court of California, County of Orange LAW OFFICES OF CHOI & ASSOCIATES, APLC 06/04/2018 at 12:38:00 PM 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 Attorneys for Plaintiff DIVINA ROSAL Clerk of the Superior Court By Jeanette Tomes-hendoza, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER - UNLIMITED CIVIL DIVINA ROSAL, an individual, Plaintiff, VS. JP SENIOR HOMES, LLC., a Limited Liability Company, KUNIKO SIGRIST, an individual, CHRISTOPHER SIGRIST, an individual, and DOES 1 through 30, inclusive, Defendants. Case No.: 30-2017-00922290-CU-OE-CJC Assigned for All Purposes to Honorable Richard Lee in Department C32 NOTICE OF MOTION AND MOTION TO SET ASIDE ORDER BINDING ACTION TO ARBITRATION, AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $5,310.00; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF EDWARD W. CHOI IN SUPPORT THEREOF DATE: June 28, 2018 TIME: 1:30 p.m. DEPT: C32 Reservation Number: 72823599 MOTION TO SET ASIDE ORDER BINDING ACTION TO ARBITRATION 1 DO 0 N N nn B W ) BN N N RN N N N N N em e m e m e m e m e m e e e t e m ee 0 0 NN O N Un A W N = O V N N N B R E W NN -= CO TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT ON June 28, 2018 at 1:30 p.m. or as soon thereafter as the matter may be heard, before the Honorable Richard Lee in Department C32 of the above entitled court located at 700 Civic Center Drive West, Santa Ana, CA 92701, Plaintiff DIVINA ROSAL (“Plaintiff”) will, and hereby does, move the court for an Order to Set Aside the August 7, 2017 Order Binding Action to Arbitration. Moreover, given Defendants’ wholly unjustified refusal to provide funds for arbitration, Plaintiff also requests that the Court impose monetary sanctions against Defendants in the amount of $ 5,310.00. This motion is based upon California Rules of Court, rule 3.811(b). The ground for this motion is that the case is not amenable to arbitration, because it would not reduce the probable time and expense necessary to resolve the litigation. Although not specifically required by the Code of Civil Procedure, Plaintiff did attempt good faith and sincere efforts to avoid court intervention. However, Defendants absolutely refused to comply with the statutory requirements for proper and timely arbitration fees. On January 16, 2018, an arbitrator was appointed with JAMS. On the same day, JAMS requested payment from Defendants to commence arbitration proceedings. On May 3, 2018, JAMS provided notice to all parties that the matter will be placed on administrative suspension, if payment was not received by May 17, 2018. As the date of filing for the motion, Defendants still have not paid their arbitration fees. Due to the delay and lack of funding by Defendants, Plaintiff was forced to file this motion. GOOD CAUSE EXISTS for issuance of the order as follows: 1. Defendant has defaulted in its obligation to pay the JAMS arbitration fees under In accordance with California Rules of Court, rule 3.811(b), Defendants failed to reduce the probable time and expense necessary to resolve the litigation. 2. Defendant has refused to pay for the arbitration fees to commence with arbitration and has caused the arbitration to become suspended. Plaintiff therefore seeks an Order to Set Aside the August 7, 2017 Order Binding Action to Arbitration. MOTION TO SET ASIDE ORDER BINDING ACTION TO ARBITRATION 2 O e NN O N Wn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FURTHER TAKE NOTICE that pursuant to Code of Civil Procedure, section 128.5, Plaintiff will also seek the joint and several imposition of mandatory monetary sanctions against Defendants in the sum of § 5,310.00, which consists of the reasonable attorneys’ fees and costs necessitated by the bad faith tactics of Defendants and its counsel in refusing to respond to standard arbitration procedures. This motion is based on this Notice, the Memorandum of Points and Authorities and the Declaration of Edward W. Choi filed herewith, the papers and records on file with the Court, and on such oral and documentary evidence as may be presented at the hearing on this motion. Dated: June 4, 2018 LAW OFFICES OF CHOI & ASSOCIATES By: “Gl Wf Edward W. Choi, Esq. Attorney for Plaintiff DIVINA ROSAL MOTION TO SET ASIDE ORDER BINDING ACTION TO ARBITRATION 3 Oo 0 3 S N Ln Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL AND PRODUCEDURAL BACKGROUND On May 24, 2017, Plaintiff filed the initial Complaint against Defendants for (1) failure to pay overtime wages; (2) failure to provide meal and rest periods; (3) violation of Labor Code Section 203; (4) failure to provide accurate itemized wage statements; and (5) violation of California Business & Professions Code Section 17200, ef seq. (Declaration of Edward W. Choi (“Choi Decl.”) 43) On July 27, 2017, the parties filed their stipulation to submit action to arbitration. (Choi Decl. 94) On August 7, 2018, the Court issued the Order Binding this Action to Arbitration. (Choi Decl. 95) On August 22, 2017, Plaintiff filed her letter to commence arbitration with JAMS, one of the arbitrator services that was set forth in the Employee Arbitration Agreement. (Choi Decl. §6) On September 6, 2017, JAMS sent a request to Defendants to pay the filing fee of $1,200.00. (Id. 97). On September 28, 2017, Plaintiff inquired with JAMS and Defendants whether the filing fee was paid and was advised by JAMS that it was not paid. (/d. §8) On November 2, 2017, Plaintiff again inquired whether the filing fee was paid and received a response that it was not paid. (/d. §9) Finally, almost 3 months after the Arbitration was initiated, Defendants paid the filing fee and the Arbitration was commenced. (/d. §10) The Parties were unable to agree on an arbitrator so the JAMS strike list wag utilized. (Id. 11) On January 16, 2018, an arbitrator was appointed with JAMS. (Id. §12) On the same day, JAMS requested payment from Defendants to commence arbitration proceedings. (/d. §13) On May 3, 2018, JAMS provided notice to all parties that the matter will be placed on administrative suspension, if payment was not received by May 17, 2018. (ld. 14) On May 18, 2018, JAMS provided notice that the matter is on administrative suspension. (/d. §15) As the date of filing for the motion, Defendants still have not paid their arbitration fees, leaving Plaintiff with no choice but to seek court intervention. More importantly, no indication of whether or not Defendants intends to ever pay for arbitration as ordered by the Court has been received. Defendants’ payment is overdue, and Defendants’ gamesmanship tactics have unfortunately forced court intervention. MOTION TO SET ASIDE ORDER BINDING ACTION TO ARBITRATION 4 NO 0 N N n n BR W N N O N NN N N N RN N N m = m m m m m m m d pe e e d e d e d e e RX NN NN Ln RR W N -~= O N D N N N R A W N Y - = Oo Therefore, the Court should grant the instant motion and impose mandatory monetary sanctions against Defendants. IL. DEFENDANTS HAVE AN OBLIGATION TO PAY FOR THE ARBITRATION FEES In Armendariz v. Foundation Health Psychcare Serv., Inc., 24 Cal. 4th 83 (2000), the California Supreme Court held that for an arbitration agreement to be enforceable, the employer must be equally bound to arbitrate. Pursuant to Armendariz, for an arbitration agreement to survive, it must provide for (1) a neutral arbitrator, (2) adequate discovery, (3) a written award, (4) the availability of all of the types of relief that would otherwise be available in court, and (5) payment by the employer of any arbitration fees beyond what the employee would have to pay in court. Armendariz, 24 Cal. 4th at 102-114 [emphasis added]. Defendants have failed to pay for the JAMS arbitration fees and caused the arbitration to be placed on administrative suspension. III. TRIAL COURT HAS AUTHORITY TO REMOVE THE CASE FROM JUDICIAL ARBITRATION Trial courts have the authority and discretion to determine that a case should be removed from judicial arbitration. Invicta Plastics, U.S.A., Ltd. v. Superior Court, 120 Cal. App. 3d 190, 193, 174 Cal. Rptr. 476 (1981) (explaining that this authority and discretion, while not explicit, is necessarily implied by the basis for exemption now appearing in Cal. Rules of Court, rule 3.811(b)(6), see below). Arbitration “may be ended on motion of one of the parties.” Winston v. Woodward, 3 Cal. App. 4th 361, 367, 4 Cal. Rptr. 2d 126 (2d Dist. 1992). The Legislature's intent in enacting the judicial arbitration statute was to “provide parties with a simplified and economical procedure for obtaining prompt and equitable resolution of their disputes.” (Code Civ. Proc. § 1141.10(b)(1). Accordingly, under Cal. Rules of Court, rule 3.811(b)(6), any case that is “otherwise subject to arbitration” is exempt, where a court finds it “not to be amenable to arbitration on the ground that arbitration would not reduce the probable time and expense necessary to resolve the litigation.” (Emphasis added.) It is undisputed that Defendants stalled the commencement of arbitration by failing to pay the MOTION TO SET ASIDE ORDER BINDING ACTION TO ARBITRATION 5 NO 0 1 N h BA W N N O R O N N O R N N N ND m e m e m e e e e e m a e s e e 00 ~ ~ O v Wn Bm W N = OD NO 0 N S N RE N Y - = Oo initiation fees for more than three (3) months. Then after the arbitrator was selected, which took another 3 months to complete, Defendants failed to pay the JAMS fees for more than 4 months. Almost 10 months have elapsed since the Court’s granting of the Parties” Stipulation to Proceed with arbitration, yet, the arbitration has not been completed nor has an arbitration date been set. Defendants’ tactics have prolonged the time to resolve the litigation, and it has also increased the expenses necessary by forcing Plaintiff to file this motion and incur additional attorney fees and costs. Thus, Plaintiff requests that this Court exercise its discretion to remove the matter from arbitration and proceed forward in this Court. IV. MONETARY SANCTIONS SHOULD BE IMPOSED ON DEFENDNATS IN THE AMOUNT OF $5,310.00 The court shall impose mandatory monetary sanctions under section 128.5- " A trial court may order a party, the party's attorney, or both to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10 ) of Title 3 of Part 3." As stated above, through their delay tactics, almost 10 months have been wasted. As the date of filing for the motion, Defendants still have not paid their arbitration fees and the arbitration has been placed on administrative suspension. As set forth in section 128.5 of the Code of Civil Procedure, monetary sanctions are mandatory. Justice requires that Plaintiff be reimbursed for the fees and costs that the bad faith conduct by Defendants and their counsel causing Plaintiff unnecessary delay. Further, by imposing the full amount of the requested sanctions, the Court will promptly bring an end to Defendants’ bad faith and abusive tactics. Plaintiff therefore requests the court impose the full amount of requested monetary sanctions against Defendants, in the sum of $5,310.00 for the time necessary to prepare and file this motion and to attend the hearing on this Motion (billed at the hourly rate of $700.00), and $60.00 in filing fees. i i MOTION TO SET ASIDE ORDER BINDING ACTION TO ARBITRATION 6 NO 0 N Y BA W N N N N Y = e m e m e t e t e d e t E I 8 B R E N V E E x I a x 8 & 0 = 5 V. CONCLUSION For all of the foregoing reasons, Plaintiff requests for an Order to Set Aside the August 7, 2017 Order Binding Action to Arbitration. Plaintiff further requests the court impose the full amount of requested monetary sanctions against Defendants, jointly and severally, in the sum of $5,310.00, for their abuse of the arbitration process which necessitated the filing of this motion. Dated: June 4, 2018 LAW OFFICES OF CHOI & ASSOCIATES Atl Wf - By: Edward W. Choi, Esq. Attorney for Plaintiff DIVINA ROSAL MOTION TO SET ASIDE ORDER BINDING ACTION TO ARBITRATION 7 PROOF OF SERVICE I'am employed in the County of Los Angeles; I am over the age of 18 years and not a party to the within action; my business address is 515 S. Figueroa St. Suite 1250, Los Angeles, California 90071. On June 4, 2018, I served the foregoing document(s) described as: NOTICE OF MOTION AND MOTION TO SET ASIDE ORDER BINDING ACTION TO ARBITRATION, AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $5,310.00; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, on the nfereste parties in this action by placing a true copy thereof, in a sealed envelope(s) addressed as ollows: Glendy Lau, Esq. Ford Harrison LLP 350 S. Grand Ave. Los Angeles, CA 90071 BY MAIL As follows: Iam “readily familiar” with the practice of Choi & Associates, Attorneys at Law for collection and processing of correspondence for mailing with the United States Postal Service and that correspondence placed in the outgoing mail tray in my office for collection would be deposited in the United States Mail that same day in the ordinary course of business. X BY FEDERAL EXPRESS _X by placing a true and correct copy thereof enclosed, in (a) sealed envelope(s) addressed to the party(ies) listed above or on the attached mailing list. I am readily familiar with the firm's practice for collection and processing of correspondence and other materials for mailing with Federal Express. ___X___ (State) [ declare under penalty of perjury that the foregoing is true and correct. (Federal) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on June 4, 2018, at Los Angeles, California. _- Cina Kim PROOF OF SERVICE