Opposition To Motion To Compel ArbitrationMotionCal. Super. - 2nd Dist.June 6, 2018Electronically FILED by Superior Court of California, County of Los Angeles on 01/25/2019 01:24 PM Sherri R. Carter, Executive Officer/Clerk of Court, by D. Ramos,Deputy Clerk S H O W N Oo 0 9 AN Wn 10 11 12 13 14 15 16 17 18 19 20 21 2 03 24 25 26 27 © 28 Mark C. Fields (#100668) Law Offices of Mark C. Fields, APC 333 So. Hope Street, 35" Floor Los Angeles, California 90071 Tel: (213) 617-5225 Fax: (213)629-4520 Email: fields@markfieldslaw.com Attorneys for Plaintiff, Ryan Kavanaugh SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES RYAN KAVANAUGH, an individual, ) Case No. BC709181 ) Plaintiff, ) Assigned for all purposes to the ) Hon. Elizabeth Allen White, Dept. 48 ADAM FIELDS, an individual; HE'S A REBEL ) PRODUCTIONS, INC., a California corporation; ) PLAINTIFF RYAN KAVANAUGH’S and, DOES 1 - 15, ) OPPOSITION TO DEFENDANT ADAM ) FIELDS’ MOTION TO COMPEL Defendants. ) ARBITRATION ) ) Date: February 7, 2019 ) Time: 8:30 a.m. ) Dept: 48 ) ) Complaint filed: June 6, 2018 ) Trial date: Not yet set ) ) Plaintiff Ryan Kavanaugh ("Kavanaugh") hereby respectfully submits his Opposition to the Motion to Compel Arbitration by Defendant Adam Fields (“Fields”) 1. INTRODUCTION AND SUMMARY Fields Motion essentially is based on the following: = personal attacks on Kavanaugh which have no legal relevance whatsoever and made with glaringly transparent purpose of simply to prejudice the Court against Kavanaugh; * an irrelevant (and misleading) discussion regarding service of process on Fields; * quotations from the arbitration provisions in the Consulting Agreement and Executive 1 OPPOSITION TO MOTION TO COMPEL ARBITRATON OO © NN wn Bs W N N O N N N N N N N N e e e m e m e m m s p e e d e e ee 0 ~~ O N Wn A W O N = O WW N N N E W ND O Employment Agreement; and = citations to three cases which reference the public policy favoring arbitration, but without any explanation as to how such cases apply to the current Action. The Complaint’s Third Cause Of Action (against Fields for Abuse Of Process), though, has nothing to do with the arbitrable matters of the consulting services rendered by Rebel Production pursuant to the Consulting Agreement or the employment service of Adam Fields pursuant to the Executive Employment Agreement. The claims asserted in the Third Cause Of Action (for Abuse of Process) Action deal exclusively with post-arbitration tortious conduct of Adam Fields that are entirely unrelated Fields' employment, and thus not subject to arbitration. 2. LEGAL ARGUMENT A THERE IS NO PUBLIC POLICY TO COMPEL ARBITRATION OF DISPUTES OVER WHICH THE PARTIES HAVE NOT AGREED TO ARBITRATE The Motion cites three cases for the proposition that there is a public policy in favor of enforcing arbitration clauses. Kavanaugh does not dispute that. However, there is no public policy to compel arbitration of matters beyond what the parties agreed to arbitrate. An erudite explanation of that limitation is set forth by the Court of Appeal in Boni v. David, 147 Cal. App. 4th 1055, 1063 (2007), as follows: But there is another principle that needs to be considered. As our Supreme Court stressed several decades ago, the contractual terms themselves must be carefully examined before the parties to the contract can be ordered to arbitration: “Although ‘[tThe law favors contracts for arbitration of disputes between parties’ [citation], * “there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate...” > [Citations.] In determining the scope of an arbitration clause, ‘[t]he court should attempt to give effect to the parties’ intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made [citation].” [Citation.]” (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744, 222 Cal.Rptr. 1, 710 P.2d 833.) 21 Following on from this, and as other courts of appeal have regularly observed, the terms of the specific arbitration clause under consideration must reasonably cover the dispute as to which arbitration is requested. This is so because “[t]here is 2 OPPOSITION TO MOTION TO COMPEL ARBITRATION © 0 uN O&O wn BA W N N O N O N N N N N N N m m e m e m e t e e e b e b e b pe 00 ~~ O N Un hh W N = O WV 0 8 N N R W N N ~~ Oo no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate.” (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653, 35 Cal.Rptr.2d 800; see also Medical Staff of Doctors Medical Center in Modesto v. Kamil (2005) 132 Cal.App.4th 679, 684, 33 Cal.Rptr.3d 853 (Kamil ); Larkin, supra, 76 Cal.App.4th at p. 230, 90 Cal.Rptr.2d 195; United Public Employees v. City and County of San Francisco (1997) 53 Cal.App.4th 1021, 1026, 62 Cal.Rptr.2d 440; County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 245, 54 Cal .Rptr.2d 628; Hayes Children Leasing Co. v. NCR Corp. (1995) 37 Cal.App.4th 775, 787, 43 Cal.Rptr.2d 650; Luster v. Collins (1993) 15 Cal. App.4th 1338, 1346, 19 Cal.Rptr.2d 215.). Indeed, this principle is effectively prescribed by Civil Code section 1648, which provides: “However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.” (Civ.Code, § 1648.) 2B THE PARTIES NEVER AGREED TO ARBITRATE FIELDS’ TORTIOUS ABUSE OF PROCESS CONDUCT WHICH HE PERPETRATED AFTER THE CONCLUSION OF THE UNDERLYING ARBITRATION AND PERTAINING TO THE ARBITRATION ITSELF Pursuant to the Consulting Agreement, Rebel Productions was to provide certain consulting services to Relativity. Section 7.11 of the Consulting Agreement provides in pertinent part that: "Lender . . . and Company (including its Affiliates) agree that, if a dispute arises concerning or relating to this Agreement or in connection with any subsequent engagement by Company or any of its Affiliates, the dispute shall be submitted to binding arbitration. . . ." (Emphasis added.) Pursuant to the Executive Employment Agreement, Adam Fields was to provide certain employment services to Relativity. Section 6.10 of the Executive Employment Agreement provides in pertinent part that: "Executive and Company (including its Affiliates) agree that if a dispute arises concerning or relating to this Agreement or any subsequent employment relationship between the parties, the dispute shall be submitted to binding arbitration . . . ." The arbitration provisions of both Agreements provide, inter alia, as follows: "Any decision and findings of the arbitrator shall be held confidential by the parties, and the parties 3 OPPOSITION TO MOTION TO COMPEL ARBITRATION OW 0 NN OO n s W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agree to execute all documents necessary 1 maintain such confidentiality. (Emphasis added.) Paragraph 1 of the Consulting Agreement and also Paragraph 1 of the Executive Employment Agreement refer to Relativity (which at that time was in bankruptcy) and 143 direct and indirect subsidiaries. It is clear on the face of both Agreements that what was subject to arbitration was: (a) issues arising from or relating to consulting services provided by Rebel Productions under the Consulting Agreement to Relativity or its 143 other direct or indirect subsidiaries; and, (b) issues arising from or relating to employment services provided by Adam Fields under the Executive Employment Agreement to Relativity or its 143 other direct or indirect subsidiaries. The Third Cause Of Action has literally nothing to do with the employment services rendered by Adam Fields pursuant to the Executive Employment. It pertains exclusivity to tortious misconduct consisting of an abuse of process occurring after the arbitration and pertaining to what Fields did in wrongfully attaching Arbitration-Related Materials to a Proof Of Claim, which materials were totally unnecessary for the Proof Of Claim and done solely to harm Kavanaugh. The cases cited in the Motion have no applicability to whether misconduct at an arbitration or pertaining to the conduct of the arbitration is itself subject to arbitration. Coast Plaza Doctors Hosp. v. Blue Cross of California, 83 Cal. App.4" 677 (2000) held that both tort and contract claims arising from and relating to the conduct pertaining to the substance and performance of a services agreement are arbitrable; Moncharsh v. Heily & Blasé, 3 Cal.4™ 1 (1992) related to the standard of review of an arbitration award; United Transportation Union v. Southern Cal. Rapid Transit Dist., 7 Cal. App.4™ 804 (1992) interpreted an arbitration clause in a collective bargaining agreement to cover both full-time and part employees. I' The First Amended Complaint at Paragraph 16 defines “Arbitration-Related Materials, as follows: “Defendants' Proof of Claim attached materials which were directly violative of the confidentiality provision of the arbitration clauses in the Agreements, including but not limited to the following: (A) An 8-page (misleading, incomplete, and inaccurate) summary prepared by Defendants regarding the Arbitration; (B) Exhibits introduced at the Arbitration; (C) Declarations submitted in the Arbitration; (D) An Arbitration Transcript; (E) A motion submitted in the Arbitration; (F) three excerpted portions of rulings by the Arbitration in the Arbitration; and (G) a 4 OPPOSITION TO MOTION TO COMPEL ARBITRATION OO 00 NN O N wn Rh WL W NN N O N N N N N N R N N em e m e m e m e m e a e s e s e e WW J O N w i BA W N = O V O N N N N E E W N -~ Oo This Action is similar to a lawsuit brought by a group of physicians ("Physicians") against Blue Cross for defamation. Blue Cross had a contract with Physicians to provide medical care for Blue Cross beneficiaries. After a dispute arose pertaining to such care provided to Blue Cross beneficiaries, Blue Cross publicly made defamatory statements contending that Physicians performed unnecessary cardiac procedures. In denying a motion to compel arbitration, the Court of Appeal in Medical Staff of Doctors Medical Center in Modesto v. Kamil, 132 Cal.App.4™ 679, 683 - 684 explained as follows: Blue Cross argues the cases establish that a broadly worded arbitration clause applies to any controversy that has its “ ‘roots’ ” in the contractual relationship. (Wolitarsky v. Blue Cross of California (1997) 53 Cal. App.4th 338, 347-348, 61 Cal.Rptr.2d 629.) It relies on the general arbitration clause that requires arbitration of disputes concerning the terms of the agreement. Even assuming this clause can reasonably be read to encompass disputes having “roots” in the contract relationship, or arising out of that relationship, Blue Cross does not prevail. 121 BI Hl We interpret a contract to give effect to the mutual intent of the parties as expressed in its language. (I Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 684, p. 617.) The words of the contract are given their ordinary and popular meaning unless used by the parties in a technical sense. (Jd. at § 685, p. 618.) We construe the contract in light of the circumstances under which it was made, including its subject. (Id. at § 688, p. 621.) Here the contract between Blue Cross and Physicians is to provide medical care for Blue Cross beneficiaries. The question is whether the seemingly innocuous phrase “concerning the terms of” the agreement to provide medical care can reasonably be said to include the alleged malicious destruction of the Physicians’ personal and professional reputations. To ask the question is to answer it. The answer is no. There may be cases where the alleged defamation is so intimately bound with the terms of the agreement that arbitration is appropriate. But the terms of this agreement do not give Blue Cross carte blanche to publicly pillory Physicians in press releases and newspaper reports as alleged here. The defamation complained of here no more concerns the terms of the agreement, than would a punch in the nose during a dispute over a medical billing. In Vianna v. Doctors’ Management Co. (1994) 27 Cal. App.4th 1186, 1190, 33 Cal.Rptr.2d 188, a doctor who was accused of sexually harassing another employee’s husband was forced to resign. The doctor sued for defamation, among other things. The court held his complaint was subject to arbitration under a clause very similar to the general arbitration clause in contention here. But in Vianna there was no suggestion that the defamation occurred by publishing the matter in press releases and newspaper articles. Stipulation in the Arbitration (collectively, the "Arbitration-Related Materials".)” 5 OPPOSITION TO MOTION TO COMPEL ARBITRATION OO 00 3 O&O wun sr W N N O R O R N RD N N N N N e e e e e e e e m e e s e 00 ~~ O N Wn A W N = O O Vw o e N N N nn Bs , W N - oO Blue Cross relies on the policy favoring arbitration. (Citing Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal.App.3d 99, 105, 186 Cal.Rptr. 740.) But no policy favors the arbitration of disputes the parties have not agreed to arbitrate. (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653, 35 Cal.Rptr.2d 800.) As set forth in the First Amended Complaint as Paragraphs 16 and 17, Defendants embarked on a campaign to publicize the arbitration proceedings (including findings, exhibits, and transcripts), preparing and attaching a 8-page vituperative summary of the arbitration attached to a public proof of claim Such tortious conduct is not subject to arbitration; they are simply acts of misconduct pertaining to the arbitration proceeding itself and misuse of subsequent steps pertaining to the conduct and results of the arbitration. 3. IF THE ACTION IS TO BE ARBITRATED, THE ARBITRATOR RATHER THAN THIS COURT SHOULD DETERMINE WHICH PARTY BEARS ARBITRATION FEES As discussed supra, this Action should proceed rather than be sent to arbitration. However, in the event the Court does decide to compel arbitration, it is up to the arbitrator to determine which party is to pay the arbitrator's fees. Paragraph 3 of the proposed Order dealing with payment of arbitrator's fees is a matter more properly before the arbitrator and not this Court. It is up to the arbitrator to determine whether Kavanaugh is an "Affiliate" for the purpose of the Consulting Agreement and Executive Employment Agreement, or whether the intention of the word "Affiliate" covered Relativity and its 143 direct and indirect subsidiaries, or whether it covered individuals who had various relationships with Relativity and the 143 direct and indirect subsidiaries. That legal determination has never been made; nor has there been a factual determination as to whether Kavanaugh was at the time of the execution of the two Agreements an Affiliate or whether he today has that capacity. If the proposed Order is signed, the third paragraph requiring Kavanaugh to pay arbitrator's fees should be stricken, as both legally and factually unsupported and also within the purview of the arbitrator. 6 OPPOSITION TO MOTION TO COMPEL ARBITRATION OO © 0 3 oO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 8 Dated: January 25, 2019 By LAW OFFICES OF MARK C. FIELDS, AP. Mark C. Fields Attorneys for Plaintiff Ryan Kavanaugh 7 OPPOSITION TO MOTION TO COMPEL ARBITRATION 10 11 12 1:8 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 333 South Grand Avenue, Suite 3400, Los Angeles, California 90071. On January 25, 2019, I served the foregoing document(s) described as: PLAINTIFF RYAN KAVANAUGH’S OPPOSITION TO DEFENDANT ADAM FIELDS’ MOTION TO COMPEL ARBITRATION on the interested parties in this action: Grodsy & Olecki LLP Allen B. Grodsky, Esq. Tim B. Henderson, Esq 2001 Wilshire Boulevard. Suite 200 Santa Monica, California 90403 () BY MAIL: Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. CCP §1013(a); Fed. Rule Civ. Proc. 5(b). (X) BY EXPRESS MAIL/FEDERAL EXPRESS/OVERNIGHT MAIL: | am "readily familiar" with the firm's practice of collection and processing correspondence for express mail/Federal Express. Under that practice it would be deposited with the U.S. Postal Service/Federal Express on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. CCP §71013(c). For Monday delvery. (X) BY EMAIL: | caused said document(s) to be transmitted by electronic transmission on that same day at approximately 2 p.m. to Tim Henderson at tim@thegolawfirm.com. (x) STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. CCP §2015.35. Executed on January 25, 2019, at Los Angles, w s 27 Mark C. Fields
