Case Number: BC661674 Hearing Date: September 19, 2019 Dept: 4A

Motions to Compel Arbitration

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On May 17, 2017, Plaintiff Juan Manuel Gutierrez filed a complaint against Defendant CG Roxane, LLC (erroneously sued and served as Crystal Geyser Water Company) alleging negligence and premises liability for materials getting knocked down or blown lose by the wind and then striking Plaintiff on April 7, 2017.

On December 14, 2018, Plaintiff filed a first amended complaint against Defendants CG Roxane, LLC (erroneously sued and served as Crystal Geyser Water Company), CG Roxane LLC, and Superior Transport Ltd. alleging additional facts.

On April 3, 2019, Defendant/Cross-Complainant CG Roxane, LLC (erroneously sued and served as Crystal Geyser Water Company) filed a cross-complaint against Plaintiff/Cross-Complainant Juan Manuel Gutierrez and Cross-Defendants Robert L. Booker, II and Century Park Law Group alleging breach of contract, fraud, and negligence, while also seeking declaratory relief.

On April 26, 2019, Defendant/Cross-Complainant CG Roxane, LLC (erroneously sued and served as Crystal Geyser Water Company) filed a first amended cross-complaint to allege additional facts.

On June 28, 2019, Cross-Defendants Robert L. Booker, II and Century Park Law Group filed a motion to compel arbitration pursuant to California Code of Civil Procedure section 1281.2.

On August 8, 2019, Defendant/Cross-Complainant CG Roxane, LLC (erroneously sued and served as Crystal Geyser Water Company) filed a motion to compel arbitration pursuant to California Code of Civil Procedure section 1281.2.

An Order to Show Cause Re: Dismissal is scheduled for May 18, 2020.

PARTIES’ REQUESTS

Cross-Defendants Robert L. Booker, II and Century Park Law Group (“Booker & CPLG”) ask the Court to compel it and Defendant/Cross-Complainant CG Roxane, LLC (erroneously sued and served as Crystal Geyser Water Company) (“CG Roxane”) to participate in arbitration pursuant to a settlement agreement entered into on October 1, 2018.

CG Roxane asks the Court to compel it, Booker & CPLG, and Plaintiff/Cross-Defendant Juan Manuel Gutierrez (“Gutierrez”) to participate in arbitration pursuant to a settlement agreement entered into on October 1, 2018.

LEGAL STANDARD

California Code of Civil Procedure section 1281.2, permits a party to file a petition to request that the Court order the parties to arbitrate a controversy. Under section 1281.2, a party is permitted to file a motion to request that the Court order the parties to arbitrate a controversy. Section 1281.2, also states that the Court may grant the motion if the Court determines that an agreement to arbitrate the controversy exists.

When a motion to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. (Rosenthal v. Great Western Financial Sec. Corp. (1996) 14 Cal.4th 394, 413.) The moving party bears the burden of proving its existence by a preponderance of the evidence because the existence of the agreement is a statutory prerequisite to granting the petition. (Ibid.)

A party opposing a motion to compel arbitration based on a defense to enforcement bears the burden of producing evidence of and proving the defense by a preponderance of the evidence. (Ibid.) The facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only at the court’s discretion. (Id. at pp. 413-414.) The trial court’s role is to resolve these factual issues, not merely to determine whether evidence opposing the petition is sufficiently substantial. (Id. at p. 414.)

Since binding arbitration is a matter of contract, the parties may freely delineate the areas of its application, and a proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479; Morris v. Zuckerman (1967) 257 Cal.App.2d 91, 96.) Arbitration, as a general rule, should be upheld by the court, unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute. (Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal.App.3d 99, 105; O’Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 490-491.) The court should 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. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.)

There is a strong policy in favor of enforcing agreements to arbitrate, but there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate. (State Farm Mut. Auto. Ins. Co. v. Superior Court (1994) 23 Cal.App.4th 1297, 1301-1302.)

DISCUSSION

On October 1, 2018, Booker & CPLG and CG Roxane signed a stipulation for settlement pursuant to a settlement agreement. (Yoshioka Decl., ¶ 5, Exh. A.) The agreement states in paragraph 2 that CG Roxane shall pay Gutierrez to settle BC661674. (Ibid.) Paragraph 3 of the agreement provides that Gutierrez is barred from proceedings against CG Roxane in the future concerning BC661674. (Ibid.) The agreement states in paragraph 10 that “[a]ll disagreements over the form or content of the formal settlement agreement, releases, or breaches of substantive issues or confidentiality provision of the settlement shall be decided in a binding arbitration before Judge Stone, the mediator and his ruling shall be final and binding and not subject to any appeal.” (Ibid.) On October 1, 2018, Robert Booker II signed the agreement on behalf of Gutierrez and the representative for CG Roxane signed the agreement on October 1, 2018. (Ibid.; Booker Decl., ¶ 2.)

Subsequently, Plaintiff purported to withdraw from the settlement agreement. (Booker & CPLG Motion, p. 4:14-4:15.) In response, CG Roxane filed a cross-complaint against Booker & CPLG on the ground that they misrepresented Gutierrez’s consent to sign the settlement agreement. (Booker & CPLG Motion, p, 4:15-4:27.)

On March 27, 2019, the Court found the purported signature by Gutierrez on the agreement was not in fact signed by him. Robert Booker II declares that Gutierrez approved of the settlement and gave his permission to sign the settlement agreement on September 27, 2018. (Booker Decl., ¶ 2.) Robert Booker II declares that he has a recording of this phone call, which was consented to by Gutierrez, but he does not disclose the specifics of the telephone conversation or provide a transcript or copy of the audiotape. (Booker Decl., ¶ 3.)

The Court finds it cannot grant either motion.

As to Booker & CPLG’s motion, they were not parties to the settlement agreement. They were acting as Gutierrez’s agents. There is not a single term in the settlement agreement that is binding on Booker & CPLG. Accordingly, their motion is properly denied.

As to CG Roxane’s motion, the Court finds CG Roxane has not presented sufficient evidence to meet its burden to show that Booker & CPLG had authority to agree to the arbitration clause on Gutierrez’s behalf. While there is a broad statement from Mr. Booker that Mr. Gutierrez “approved Judge Stone’s proposed settlement terms and gave his permission to sign the settlement agreement,” there is insufficient evidence demonstrating that Plaintiff specifically agreed to the arbitration clause in the Stipulation for Settlement or even that Mr. Booker discussed this provision with his former client. (Booker Decl., ¶ 3.) Further, the Court notes that Mr. Booker’s declaration stating that Gutierrez agreed to the settlement is not evidence submitted in support of CG Roxane’s motion. But even if it were, this declaration is far too vague and general to demonstrate that Gutierrez specifically agreed to the precise arbitration clause at bar.

The Court is also concerned about the lack of evidence in the record about whether, in obtaining Gutierrez’s consent, Mr. Booker accounted for Mr. Gutierrez’s traumatic brain injury or any language barriers he faced since he is primarily a Spanish-speaker. (See Opposition, p. 3:25-3:26; 14:17-14:25.) Where an individual does not understand or read English, the presentation of an arbitration clause in dense, legalese English under circumstances that do not allow time for translation, explanation or reflection may support a finding of procedural unconscionability and, thus, undermine the enforceability of the clause. (Samaniego v. Empire Today LLC (2012) 205 Cal. App. 4th 1138, 1145-1146.) In this situation, it is especially important for the Court to have specific evidence of what terms and information were conveyed to Mr. Gutierrez and how it was conveyed, including whether it was in Spanish and explained in understandable terms. The Court’s concerns are not alleviated by Mr. Booker’s declaration, since he and his firm are willing to reveal the general nature of the conversation with Mr. Gutierrez, but have not lodged the transcript or autotape of the actual recorded conversation with the Court.

Accordingly, the Court cannot find on this record that Mr. Gutierrez agreed to an arbitration clause that may be enforced under Code of Civil Procedure section 1281.2.

The motions are DENIED.

Plaintiff is ordered to give notice of this ruling.