Case Number: BC698256 Hearing Date: May 10, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

michael pauletti,

Plaintiff,

v.

ashot barseghyan, et al.,

Defendants.

Case No.: BC698256

Hearing Date: May 10, 2019

[TENTATIVE] order RE:

defendantS’ motion to compel arbitration and stay action

Background

Plaintiff Michael Pauletti (“Plaintiff”) alleges that he was assaulted by an Uber driver, Defendant Ashot Barseghyan, during his Uber ride. Plaintiff filed this action on March 14, 2018, asserting causes of action for negligence/negligent hiring, battery, assault, and fraud. Now, Uber Technologies, Inc. and Rasier, LLC (“Defendants”) move to compel arbitration, which Plaintiff opposes. The motion is denied.

APPLICABLE LAW

“California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. [Citation.] To further that policy, [Code of Civil Procedure] section 1281.2 requires a trial court to enforce a written arbitration agreement” unless one of four limited exceptions applies. (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) Those statutory exceptions arise where: (1) A party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues; (4) the petitioner is a state or federally chartered depository institution that, on or after January 1, 2018, seeks to compel arbitration pursuant to a contract whose agreement was induced by fraud or without respondent’s consent. (CCP § 1281.2, subds. (a)–(d).)

DISCUSSION

There is no dispute that there was an agreement to arbitrate such disputes. Instead, Plaintiff opposes the motion by arguing, first, there was a waiver of the right to arbitrate, and, second, the fact that the driver is a defendant precludes arbitration. The Court agrees that Defendants waived the right to seek to enforce the arbitration provision and denies the motion on that ground.

First, the Court finds that Defendants waived their right to enforce the arbitration provision in this case. In order to find a waiver, Plaintiff must demonstrate: (1) Defendants knew of an existing right to compel arbitration; (2) Defendants acted inconsistently with that right; and (3) There was prejudice to the opposing party. (Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1203.) Plaintiff has satisfied this standard. There can be no dispute that Defendants knew about the arbitration provision. Also, the record reflects that Defendants elected to litigate this case in the Superior Court. The action was filed on March 14, 2018, and Defendants were served on April 9, 2018. Defendants answered the complaint on May 7, 2018. Yet, this motion was not filed until February 8, 2019, approximately ten months after Defendants were served. In the interim, Defendants took full advantage of the process of the Superior Court by engaging in full discovery. (Declaration of Teresa A. Johnson, ¶ 8.) This indicates that Defendants intended to take advantage of the discovery process of the Superior Court. Finally, the Court finds prejudice to Plaintiff, as discovery has been proceeding for approximately ten months, and Plaintiff has invested time and resources into this case. (Id. ¶¶ 8-10.) As the Second District has recognized in an analogous case: “[I]n litigation as in life, you can’t have your cake and eat it too.” (Guess? Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 555 (holding that defendant waived right to arbitrate when it participated in the discovery process for three months before moving to arbitrate.)

CONCLUSION AND ORDER

Defendants’ motion to compel arbitration is denied. Defendants shall give notice and file proof of such with the Court.

DATED: May 10, 2019 ___________________________

Stephen Goorvitch

Judge of the Superior Court