17-CIV-02443 MD ANIS UZZAMAN, ET AL. VS. BRANDON K. HILL, ET AL.

MD ANIS UZZAMAN TIMOTHY B. BRODERICK

BRANDON HILL SEAN TAMURA-SATO

PLAINTIFF’S MOTION FOR ORDER TO WITHDRAW FROM NON-BINDING ARBITRATION, OR IN THE ALTERNATIVE, TO VACATE ORDER TO ARBITRATE PER CCP 473(D)AS VOID OR PER CCP473(B) FOR COUNSEL’S MISTAKE, INADVERTENCE, SURPRISE, AND/OR EXCUSABLE NEGLECT

· GRANTED. Plaintiffs Anis Uzzaman and Fenox Venture Capital, Inc.’s Motion To Withdraw From Arbitration is Granted. For the reasons stated below, Plaintiffs Uzzaman and Fenox Venture are entitled to either (1) have the Court’s reference to Non-Binding Judicial Arbitration vacated or (2) have the $50,000 cap on Arbitration Award, if any, removed. Counsel shall Meet & Confer on which option should be Ordered.

· Plaintiffs allege that Defendant Brandon Hill, posing as a female entrepreneur, posted an anonymous blog article falsely accusing his business competitor Plaintiff MD Anis Uzzaman of sexual misconduct, among other alleged falsehoods. Plaintiffs contend that the post caused Plaintiff Uzzaman and his company, Plaintiff Fenox Venture Capital, Inc., to lose large likely business deals, causing economic damages of approximately $55 million over ten years and causing significant general damages for Uzzaman.

· In the CMC statement, neither Plaintiffs nor Defendant indicated that they were willing to participate in non-binding judicial arbitration. At the case management conference, however, the Court asked if Plaintiffs were willing to go to nonbinding judicial arbitration, and Plaintiffs’ counsel stated that they were “amenable” to it. Defendant’s counsel did not object to non-binding judicial arbitration. The Court (Hon. Robert Foiles) Ordered the case to non-binding judicial arbitration.

· At the arbitration, Defendant’s counsel for the first time asserted that he was silent at the CMC and that arbitration was not by stipulation, but was by Plaintiffs’ “election.” When arbitration is not by stipulation, then an arbitration award is thereby capped by statute at $50,000. Also, the pertinent statute provides that if the Arbitrator awards Plaintiffs the maximum award of $50,000, then Plaintiff may not request a trial de novo. This Motion followed.

· Local Rule 2.3G does not apply to this matter. Since the Rule specifies that a stipulation must be written, it does not apply to oral stipulations.

· Code of Civil Procedure section 1141.12(b) and CRC Rule 3.881 mandate arbitration when a plaintiff “files an election” for arbitration and “each plaintiff agrees that the arbitration award will not exceed $50,000 as to that plaintiff.” In the present case, Plaintiffs never filed an election for arbitration. Their CMC Statement did not select arbitration as an acceptable ADR process. Also, Plaintiffs did not agree to a $50,000 cap on an arbitration award. Therefore, arbitration was not mandated under the statute or Rule of Court.

· The Robinson and Invicta Plastics cases involved a plaintiff’s seeking relief before arbitration began, but that does not preclude Plaintiffs in this action from seeking the same relief. Plaintiffs filed this Motion as soon as they learned that Defendants took the position that they did not stipulate to arbitration, meaning that, as in Robinson and Invicta Plastics, arbitration would be limited to an award substantially lower than Plaintiffs’ claim.

· Plaintiffs sufficiently demonstrate that the order to arbitration was the result of mistake, inadvertence, surprise, or excusable neglect. Plaintiffs’ counsel interpreted Defense counsel’s silence at the CMC as a “stipulation” to arbitration, which would mean that an arbitration award would not be limited to $50,000. (Code of Civ. Proc. sect. 1141.12, subd. (a); CRC Rules 3.811(a)(4) & 3.812(a).) If Defense counsel’s silence was a stipulation to arbitration, as Plaintiff’s counsel believed, then arbitration should proceed without a $50,000 cap on the award. If Defense counsel’s silence was not a stipulation, then Plaintiff was operating under mistake, surprise, or excusable neglect, in which case the order to arbitration should be set aside under section 473(b).

· The parties counsel are ordered to meet and confer and agree on a form of order: (1) The order to arbitration be vacated (Code of Civ. Proc. 473(b)), or (2) The parties be ordered to further proceed with arbitration, which shall proceed without a $50,000 cap on award. (CRC Rules 3.811(a)(4) & 3.812(a).)

· Subject to the Meet & Confer directed above, Moving parties Counsel is directed to prepare a written Order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The Order is to be submitted directly to Judge Gerald J. Buchwald, Department 10.