30-2020-01 = e I = A T ¥ DN N N N N N N N N = m m e m m a e b e m p e d e m e a © N y L h A W N = O Y N N S Y RA W L R , o o Electronically Filed by Superior Court of California, County of Orange, 05/26/2020 12:01:00 PM. |P7461-CL-BC-CJC - ROA #19 - DAVID H. YAMASAKI, Clerk of the Court By Nadia Huang, Deputy Clerk. Stephen C. Duringer (SBN 134592) Edward L. Laird II (SBN 102534) Stephanie A. Pittaluga (SBN 182161) The Duringer Law Group, PLC 181 S. Old Springs Rd., 2™ Floor Anaheim Hills, CA 92808 714.279.1100 Tel. 714.279.1109 Fax Attorneys for Defendant Joseph Habra SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ROSEANNE GARNICA, Case No. 30-2020-01127461-CL-BC-CIC Plaintiff, DEFENDANT’S NOTICE OF MOTION vs. AND MOTION TO COMPEL ARBITRATION AND TO DISMISS JOSEPH HABRA; and DOES 1 through 50, PENDING ACTION; MEMORANDUM INCLUSIVE, OF POINTS AND AUTHORITIES; DECLARATION OF STEPHANIE A. Defendants. PITTALUGA IN SUPPORT [CCP § 1281.2] [Filed concurrently with Request for Judicial Notice, and Proposed Order] nh Date: May-24-20208- 07/02/2020 Time: 9:30 a.m. Dept.: C03 Complaint filed: January 29, 2020 Trial date: Not Set TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD, IF ANY: 07/02/2020 nh PLEASE TAKE NOTICE that on-May-24:-2020-at 9:30 a.m., or as soon thereafter as may be heard in Department C03 of the Orange County Superior Court - Central Justice Center, located at 700 Civic Center Drive West, Santa Ana, California 92701, defendant Joseph Habra (“Defendant”) will and hereby does move the Court under Code of Civil Procedure (“CCP”) 1 DEFENDANT’S MOTION TO COMPEL ARBITRATION AND STAY OR DISMISS PROCEEDINGS oO 0 NN n t E W N N O R N O N N D N N N N r e r m e m Re d e d e d e d p e d m l p e R N I N Wn BR W N = D O e N N BR W N e e © § 1281.2 for an order dismissing this action and ordering it into arbitration pursuant to the parties’ arbitration agreement. Defendant brings this motion on the grounds that plaintiff Roseanne Garnica (“Plaintiff”) agreed in writing to arbitrate any claim, controversy or dispute arising out of or relating to the Agreement to Rent or Lease. The claims raised in Plaintiff's complaint against Defendant arise out of and relate to the Agreement to Rent or Lease, and therefore must be arbitrated. Defendant therefore requests that this action be dismissed and ordered into arbitration pursuant to the parties’ arbitration agreement, Defendant’s motion is based upon the attached Memorandum of Points and Authorities, the attached Declaration of Stephanie A. Pittaluga, the concurrently-filed Request for Judicial Notice, the concurrently-filed [Proposed] Order, the complete files and records of this action, and such evidence and argument as the Court may properly receive. Dated: March 19, 2020 DURINGER LAW GROUP, PLC By: Pao hams A. TI be, Stephanie A. Pittaluga Attorneys for Defendant Joseph Habra 2 DEFENDANT'S MOTION TO COMPEL ARBITRAT DST DISMISS PROCEEDINGS NO 0 N N BR W N B O N N N N O N R N m m em em m m p m e m e d e b e m c o O N W h RA W N RL, D W N N N E W N , MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION This lawsuit is a dispute between plaintiff Roseanne Garnica (“Garnica™), as a former tenant, and Defendant Joseph Habra (“Habra”), as her former landlord arising out of a tenancy under a written residential lease. The lease agreement contains a broad arbitration provision. Nevertheless, and despite being bound by an express arbitration provision requiring the claims in this action to be arbitrated, Garnica has filed her civil Complaint herein for breach of the warranty of habitability and related claims, all arising from her use and the alleged condition of the Premises. The Motion to compel arbitration should be granted. II. FACTUAL AND PROCDURAL BACKGROUND A. The Tenancy and the Agreement to Rent or Lease On or about November 2, 2018, Garnica and Habra entered into a written one-year Agreement to Rent or Lease (the “Lease”) for the lease of the premises located at 1420 Estate Drive #4, La Habra, California 90631 (the “Premises”).! The Lease contains a broad arbitration provision, providing in pertinent part: “27. MUTUAL AGREEMENT TO MEDIATE AND TO ARBITRATE CLAIMS. All claims, except as provided herein, between Resident and Owner arising from, or relating to the use of the leased premises, or arising from the condition of the premises or of the common areas, or any event thereon, shall be submitted to a mutually agreed upon mediator for resolution. If efforts at informal mediation are unsuccessful in resolving any dispute, then such dispute shall be resolved through binding arbitration pursuant to the Rules of Arbitration found in California Code of Civil Procedure. The arbitration shall be held in the County in which the subject premises are located, before a single neutral arbitrator agreed upon by the parties pursuant to California Code of Civil Procedure.” 2 Although the arbitration provision carves out an exception for unlawful detainer, it plainly covers all other disputes arising from or relating fo the tenancy. 1 1 ! See Defendant’s Request for Judicial Notice (“RIN™) at Exhibit A (verified complaint for unlawful detainer), and Exhibit 1 thereto (the Lease). 3 DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY OR DISMISS PROCEEDINGS Oo 0 1 O N Wn B A W NN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. The Unlawful Detainer and the Filing of this Civil Action Garnica breached the Lease from and after June 1, 2019 by failing to pay all rent and other charges due under the Lease during June and July 2019. After serving a 3-Day Notice to Pay Rent or Quit, and a 3-Day Notice to Perform Conditions and/or Covenants or Quit, with which Garnica did not comply, Habra filed an action for unlawful detainer on July 9, 2019. On the date of trial, August 15, 2019, the parties entered into a Stipulation for Entry of Judgment in favor of Habra for possession and money damages in the total amount of $4,344.95 (the “UD Judgment”).? To enforce the UD Judgment against Garnica, in November 2019, Habra began levying on her bank accounts.* Subsequent to, and perhaps in response to, the bank levies, on January 29, 2020 Garnica filed the present civil action for breach of the warranty of habitability and related claims against Habra. Counsel for Habra informed Garnica’s attorney of the arbitration agreement contained in the Lease on March 3, 2020, and asked counsel to stipulate to binding arbitration of this dispute without the need for the Court’s intervention, but to date Garnica’s counsel has refused to do so.’ Hence, the filing of this Motion. III. GARNICA’S CLAIMS ARE SUBJECT TO ARBITRATION Determining whether a particular controversy is subject to arbitration is a matter of interpretation of the parties’ contract. Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal. App.4th 1146, 1153 (“Section 1281.2 requires a court to order arbitration ‘if it determines that an agreement to arbitrate ... exists. . . .”’) Stated differently, if the parties’ arbitration agreement evidences an intent that a particular dispute, or all disputes, be referred to arbitration, arbitration should be ordered. “A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” CCP §1281. 2 RIN, Ex. A at Ex. 1 (Lease), at page 5, § 27. # RIN, Ex. B (Stipulated Judgment). * See accompanying Declaration of Stephanie A. Pittaluga (“Pittaluga Dec.”), at § 2. > Pittaluga Dec., at § 3 and Exhibit 1. 4 DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY OR DISMISS PROCEEDINGS © 0 N A N nm BA W N = P R O N ND N N N N R = m m ee ee e m e m e m e m 0 ~~ O N W h bh W N = D O e N N i RE N ~ R , Under California law, the general rule is that arbitration should be upheld in view of the public policy to encourage arbitration. Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1246-1247 (“| T]he strong public policy of this state favoring arbitration as a means of dispute resolution requires courts to indulge every intendment to give effect to such proceedings.”). A petition to compel arbitration need only show: (a) “the existence of a written agreement to arbitrate a controversy[;]” and (b) the opposing party’s refusal “to arbitrate such controversy.” CCP §1281.2. Habra meets this burden here. A. The Lease’s Arbitration Provision Covers All of Garnica’s Claims The Lease at issue here requires arbitration of all the claims asserted in this action against Habra. The Lease specifically includes “All claims, except as provided herein, between Resident and Owner arising from, or relating to the use of the leased premises, or arising from the condition of the premises or of the common areas, or any event thereon, shall be . . . resolved through binding arbitration.” Garnica’s civil Complaint asserts five causes of action against Habra for (1) failure to provide habitable dwelling, (2) breach of covenant and right to quiet enjoyment, (3) private nuisance, (4) Business and Professions Code § 17200, and (5) negligence. [See Complaint.] Each of] the claims is plainly covered by the broad arbitration agreement in the Lease, as they arise out of and relate to Garnica’s use and condition of the leased Premises. Plaintiff’s first cause of action for the failure to provide habitable premises is based upon allegations of the conditions at the Premises. [Complaint, 9 28.] Plaintiff’s second cause of action for breach of the covenant and right to quiet enjoyment alleges that “[iJmplied in Plaintiff’s lease agreement is a covenant that Defendants would not interfere with Plaintiff’s quiet enjoyment of the premises during the term of her tenancy.” [Complaint 43.] Plaintiff’s third cause of action for private nuisance is based on allegations that “Defendants created a substandard living condition , . . at the subject Property” [Complaint 54.]. Plaintiff’s fourth cause of action for Unfair Business Practice(s) Pursuant to Bus. & Prof, Code. § 17200 is based on allegations that “Defendants ... have engaged in unlawful business 5 DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY OR DISMISS PROCEEDINGS N e EE = N O N N N N N N N N m e e e m e m p m pe p m p m practices . . . by maintaining and managing the Property” in violation of various laws relating to the condition of the Premises. [Complaint 57.] Finally, Plaintiff's fifth cause of action for negligence alleges that “Because Plaintiffs were tenants in premises that Defendants owned or managed, Defendants owed a duty of care to Plaintiffs” and that “Defendants breached that standard of care ... [by allowing] harmful conditions at the Property” [Complaint, | 61, 62.] Accordingly, all of Plaintiffs’ claims arise out of or relate to the use and conditions of the leased Premises and are therefore subject to the broad arbitration provision in Section 27 of the Lease. B. Garnica Has Refused to Arbitrate this Dispute As stated above, defense counsel contacted Garnica’s counsel and advised him of the arbitration agreement in the Lease, requesting that Garnica stipulate to arbitrate this dispute. To date, Garnica has failed to do so.” Moreover, the act of filing a lawsuit with the court shows a plaintiff's refusal to arbitrate. Hyundai Amco America, Inc. v. S3H (2014) 232 Cal. App.4t 572, 574, 576-578. V. PLAINTIFFS’ COURT ACTION SHOULD BE DISMISSED There is no need for the civil action to be stayed pending the arbitration. A stay is appropriate where fewer than all of the claims are subject to arbitration, or where the relief sought cannot be granted by an arbitrator. 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal. App.4th 1199, 1209. Neither of those factors is present here. All of the claims asserted by Plaintiff are expressly covered by the parties’ arbitration agreement. Where all of the claims in an action are subject to arbitration, dismissal is proper. Id. (holding summary judgment is proper where all claims against a party are subject to arbitration); see also Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1251 (affirming summary judgment for employer where employee refused to arbitrate pursuant to arbitration agreement). S$ RIN, Ex. A, Exhibit 1, at § 27. 7 Pittaluga Dec., § 3 and Exhibit 1 thereto. 6 DEFENDANTS MO TO COMPEL ARBITRATION AND STAY OR DISMISS PROCEEDINGS R= RE C E E N O N R N N N N N N em e m e m e m e e e m e m e m pe pe ce ~ 1 O N nn R W N = O O e I N R W N = O VI. CONCLUSION For all of the foregoing reasons, Defendant Joe Habra respectfully requests that the Court order this case to arbitration and dismiss the Superior Court action. Dated: March 19, 2020 DURINGER LAW GROUP, PLC Stephanie A. Pittaluga Attorneys for Defendant Joseph Habra 7 DEFENDANT’S MOTION Tt MPEL ITRATION AND STAY OR DISMISS PROCEEDINGS o O S Y nh B A W N O N N N N N N N e m e m me Re d Re m e d e d p d p d pe 0 N Y hn BR W N = O O e N Y W N e o DECLARATION OF STEPHANIE A. PITTALUGA I, Stephanie A. Pittaluga, declare as follows: I. I am over the age of 18 years and am an attorney licensed to practice law before all courts of the State of California. Iam a principal attorney with The Duringer Law Group, PLC, attorneys of record for Defendant Joseph Habra (“Habra”). I am readily familiar with our office’s practices and procedures for maintaining its litigation files including pleadings, correspondence and contemporaneous action notes. I make this declaration in support of Defendant’s Motion to Compel Arbitration and to Dismiss Pending Action. Unless otherwise indicated, I state the following of my own personal knowledge and, if called upon to do so, I could and would competently testify thereto. 2. On July 9, 2019, our office on behalf of Habra filed an action for unlawful detainer against Plaintiff Roseanne Garnica (“Garnica’™) A copy of the unlawful detainer complaint, and the written lease it is based upon, is attached to the concurrently-filed Request for Judicial Notice (“RIN”) at Exhibit A. 3. On August 15, 2019, the Court entered and filed a Stipulation for Entry of Judgment - Unlawful Detainer in favor of Habra and against Garnica for possession and money damages in the total amount of $4,344.95 (the “UD Judgment”). (See RIN at Exhibit B.) 4. To enforce the UD Judgment against Garnica, in or about November 2019, my firm, on behalf of Habra, levied on three of Garnica’s bank accounts, collecting only $0.12 to date after Sheriff's fees. 5. Subsequent to the levies, in mid-February 2020 Habra was served with the civil Complaint in this action filed by Garnica. The Complaint does not attach the written lease that contains the arbitration agreement between Habra and Garnica, even though all of its claims are based on the tenancy created by said lease. Our office contacted Garnica’s counsel, Doug Ecks, on March 3, 2020 and informed him of the arbitration agreement contained in the lease, asking that Garnica stipulate to binding arbitration without the need to bring a motion to compel. A true and correct copy of an email dated March 3, 2020 to this effect from Stephen C. Duringer, Esq. of this 8 DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY OR DISMISS PROCEEDINGS NO 0 N N N i A W N MN B R N N O N N N N N e m e m e m p m p m p m e m e m p e co J A N Ln A W D =, O Y Re N N T R L N R firm to Garnica’s attorney, Doug Ecks, Esq. is attached hereto as Exhibit 1. To date, Garnica has not agreed to binding arbitration of this dispute. I declare under the penalty of perjury under the laws of the State of California, that the 1 foregoing is true and correct and that this declaration was executed this /9 day of March 2020, at Anaheim Hills, California. Stephanie A. Pittaluga 9 DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY OR DISMISS PROCEEDINGS EXHIBIT “17 Stephen Duringer From: Stephen Duringer Sent: Tuesday, March 3, 2020 1:34 PM To: theecksfactordefense@gmail.com Subject: Garnica vs Habra Nice talking with you Doug. As | mentioned, the underlying lease agreement requires mandatory arbitration. Additionally, there is a judgment against your client for $4,344.95. Please call me when you get back to the office, prefer not to file a motion to compel arbitration. Contact info is below. Stephen C. Duringer, [ sq. THE DURINGER LAW GROUP, PLC 181 S. Old Springs Road, 2" Floor Anaheim Hills, California 92808-1247 714.279.1100 x 234 714.279.1109 fax Other offices: Lake Arrowhead Los Angeles San Diego Sacramento Delaware www.DuringerLaw.com Notice to Debtors: This firm represents creditors in the enforcement of judgments and in the collection of debt. Any information provided by you may be used for this purpose. = 3 Please consider the environment before you print. This electronic message contains information which may be confidential and privileged and is intended only for the named addressee. If you received this message in error, you may not use, copy or disclose the contents of this message to anyone. If you are not the intended recipient, please delete the message and advise the sender by reply e-mail or by calling 714.279.1100. To ensure compliance with Internal Revenue Service Guidelines, we hereby inform you that any tax advice that may be contained in his communication is not intended nor written to be used, and cannot be used, for the improper purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending any tax-related matter addressed herein. N= O O 3 nn bh Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE CCP Section 1013(c) I am employed in the County of Orange, State of California. I am over the age of 18 years and not a party to the within action. My business address is 181 S. Old Springs Rd., 2 Floor, Anaheim Hills, CA 92808. On March 24, 2020 I served the documents described as; DEFENDANT'S NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION AND TO DISMISS PENDING ACTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEPHANIE A. PITTALUGA IN SUPPORT [CCP § 1281.2] By placing on said date a true copy of the document listed herein enclosed in a sealed envelope addressed as follows: Doug Ecks THE LAW OFFICES OF DOUG ECKS 124 E. Olive Avenue Burbank, California 91502 Tel: (714) 290-1103 Email: theecksfactordefense@gmail.com XXX BY MAIL - I deposited such envelope in the mail at Duringer Law Group, Anaheim, California. The envelope was mailed with postage thereon fully prepaid. Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice said correspondence is deposited with the United States Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business and there is delivery service by United States mail at the place where deposited. PERSONAL SERVICE: I caused such envelope by hand to the parties as listed hereinabove. OVERNIGHT DELIVERY: By Federal Express. I am familiar with the practice of Duringer Law Group for collection and processing of documents for delivery by said overnight courier. Documents so collected and processed are deposited that same day in a box or facility regularly maintained by the carrier. On this date a copy of the within described document was placed in a sealed envelope for the carrier with delivery fees paid or provided for and addressed as listed hereinabove. XXX ELECTRONIC TRANSMISSION: On the date and from the address stated hereinabove I served electronically the document described herein from the address of Ibessent@duringerlaw.com and/or through to the address(es) of (see above). XXX (State): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 24, 2020 at Anaheim Hills, California. Ad) (Qe Nsg™ Lauri Bessent Proof of Service - 1