Case Number: BC553455 Hearing Date: June 06, 2018 Dept: 73

6/6/18
Dept. 73
Rafael Ongkeko, Judge presiding

CRESPO vs. CINTAS, etc., et al. (BC553455)

Counsel for plaintiff: Adam Reisner, Tessa King, Nate Loakes (Reisner, etc.)
Counsel for defendants: Jennifer Colvin (Keating, etc.); James Morris (Rutan, etc.)

MOTION OF PLAINTIFF TO LIFT STAY ISSUED ON ARBITRATION GROUNDS (filed 5/14/18)

TENTATIVE RULING

The motion is DENIED. The court continues the post-arbitration status conference to _____________.

DISCUSSION

Plaintiff moves to have the stay lifted on the grounds that the arbitration hearing date has been taken off calendar; the case has been stayed indefinitely because there is an outstanding $15,000 fee; under the Armendariz case (2000) 24 Cal.4th 83, it is defendants’ obligation to pay the fees for arbitration; and the arbitrator has abused his discretion, is biased, and partial.

In opposition, defendants state that the fee has actually been paid and arbitration is ongoing and in good standing. Plaintiff seeks an advisory opinion, is improperly requesting reconsideration of an Order, and does not articulate a colorable claim of bias or abuse of discretion. Further, the FAA does not provide for removal of an arbitrator prior to an award, but only for potential vacatur of an award.

In reply, plaintiff argues that regardless of the payment, the stay must still be lifted because the arbitrator has abused his discretion, is biased, and partial. CCP § 1286.2. In support, plaintiff states that even though her counsel was ordered to appear for another trial on the same date, the arbitrator denied a request for continuance and held the $15,000 fee over her. CRC, rule 3.1332(c); see also Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1398-1400.

Merits

Code of Civil Procedure section 1286.2, subdivision (a) states that “the court shall vacate [an arbitration] award if the court determines any of the following:”

(1) The award was procured by corruption, fraud or other undue means.

(2) There was corruption in any of the arbitrators.

(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.

(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.

(5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.

(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives.

Here, plaintiff’s argument regarding the $15,000 fee is moot because defendants have recently paid the fee. The arbitration is still active and ongoing.

Plaintiff’s argument based on section 1286.2 fails because it is premature. There has been no arbitration award to vacate on the above grounds.

Plaintiff’s motion is denied.

Unless waived, notice of ruling by Defendants.