Case Number: BC646449 Hearing Date: October 30, 2018 Dept: 3

LIZET ANGULO,

Plaintiff(s),

vs.

MESA GLEN CARE CENTER, ET AL.,

Defendant(s).

CASE NO: BC646449

[TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF A NEUTRAL ARBITRATOR OR TO VACATE THE JOINT STIPULATION TO ARBITRATE

Dept. 3

1:30 p.m.

October 30, 2018

1. Background Facts

Plaintiff, Lizet Angulo filed this action against Defendant, Mesa Glen Care Center for medical malpractice and negligent hiring, training, and retention arising out of the allegedly wrongful death of Decedent, Alejandro Angulo. Plaintiff filed her complaint on 1/13/17. On 1/23/17, she filed a doe amendment naming P&M Management as Doe 1.

On 2/28/17, Mesa Glen and Plaintiff, by their respective attorneys, signed a joint stipulation to submit all issues between them to arbitration “consistent with the Arbitration Clause, attached hereto as Ex. A.” The Court cannot locate a document marked “Ex. A” but both parties attached an Arbitration Agreement apparently signed by the parties on 10/20/15. Article 3.1 provides: “Except as provided by law, each party shall bear its own costs and fees for arbitration.” The stipulation includes a provision permitting the Superior Court to retain jurisdiction over the matter for the purpose of enforcing the agreement to arbitrator, appointing an arbitrator, enforcing an arbitration award, etc.

2. Motion to Appoint Arbitrator or Vacate Stipulation

On 8/31/18, Plaintiff filed the instant motion to appoint arbitrator or vacate stipulation to arbitrate. The motion to appoint an arbitrator seeks an order appointing an arbitrator Plaintiff can afford. Alternatively, the motion to vacate the parties’ stipulation is made on the grounds that Plaintiff cannot afford an arbitrator and, alternatively, that Defendant has waived its right to have the matter heard by way of binding arbitration In that portion of the motion, Plaintiff seeks an order either requiring Defendant to pay the entire cost of arbitration or vacating the parties’ stipulation.

a. Motion to Appoint Arbitrator

Plaintiff explains that the parties agreed to use Troy Roe as an arbitrator, but he was not available, so the parties agreed to use Jay Horton as a replacement. She then explains that a dispute over Horton’s fees arose, because Plaintiff cannot afford to pay half of the fees. She therefore seeks an order requiring the Court to appoint an arbitrator she can afford.

Plaintiff does not cite any authority for the novel request that the Court appoint an “affordable” arbitrator. Notably, Plaintiff does not provide any suggestions for who this “affordable” arbitrator is, especially because Plaintiff essentially takes the position that she cannot afford to pay anything toward arbitration.

CCP §1281.6 provides, in pertinent part:

If the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed. … In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.

When a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought may within five days of receipt of notice of the nominees from the court jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties fail to select an arbitrator within the five-day period, the court shall appoint the arbitrator from the nominees.

The parties did not submit a list of persons to be appointed. In the absence of any authority in the moving papers and in the absence of a list of persons to be appointed, the motion to appoint an arbitrator is denied. If the parties are truly unable to select an arbitrator, either party may make a proper motion under §1281.6 and the Court will follow the procedure set forth therein.

b. Motion to Require Defendant to Pay for Arbitration or to Vacate Stipulation

In the alternative, Plaintiff moves for an order requiring Defendant to either pay for the entire arbitration or for an order vacating the parties’ stipulation and permitting the action to proceed by way of litigation.

Plaintiff relies on Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 96 in support of her position. In that case, three plaintiffs sued two defendant attorneys for fraud, financial elder abuse, and related claims arising out of the attorneys’ representation of them in an underlying matter. The attorneys moved to compel arbitration. The plaintiffs made numerous arguments in opposition to the motion, including inability to afford arbitration. The trial court granted one of the attorney’s motion to compel arbitration (the other attorney did not have a binding arbitration agreement in place and his motion was denied) over the plaintiffs’ objections. The plaintiffs subsequently filed a motion to require the defendant to pay the up-front costs of arbitration. The defendant filed a counter motion to dismiss the case on the ground that the plaintiffs were not cooperating in paying the arbitration fees. The trial court denied both motions. The court of appeals reversed the ruling on the motion concerning fees. The court of appeals held, “If, as plaintiffs contend, they lack the means to share the cost of the arbitration, to rule otherwise might effectively deprive them of access to any forum for resolution of their claims against Callahan. We will not do that. Of course, as the trial court recognized, we cannot order the arbitration forum to waive its fees, as a court would do in the case of an indigent litigant. Nor do we have authority to order Callahan to pay plaintiffs’ share of those fees. What we can do, however, is give Callahan a choice: if the trial court determines that any of these plaintiffs is unable to share in the cost of the arbitration, Callahan can elect to either pay that plaintiff’s share of the arbitration cost and remain in arbitration or waive its right to arbitrate that plaintiff’s claim.”

There is a major distinction between Roldan and this case. In this case Plaintiff, while represented by an attorney, entered into a binding stipulation to arbitrate and split the costs of arbitration. This is contrary to the plaintiffs in Roldan, where the court of appeals focused at length on the disparity in the bargaining relationship between the clients and the attorney in connection with the agreement to arbitrate. There is no explanation why Plaintiff agreed to arbitrate if she could not afford to do so. The fact that she entered into such an agreement implies that she can comply with it absent such a showing or evidence of a change of circumstances.

The Court is also concerned about Plaintiff’s declaration in support of the motion. As Defendant correctly notes in opposition, the declaration in support of the motion does not address issues such as assets that must be disclosed in a judicial council form seeking in forma pauperis status. Defendant makes a showing, in opposition to the motion, that Plaintiff has an ownership interest in two properties and several businesses. Defendant also correctly notes that Plaintiff indicates, in her declaration, that she derives her income in the form of payments from a trust, but she fails to disclose the size of the trust itself or her ability (or lack of same) to make discretionary withdrawals from the trust. Additionally, Defendant notes that Plaintiff does not disclose any income or assets from her husband, in which she may have a community interest.

Plaintiff therefore failed to make the necessary showing that she qualifies for a fee waiver, in the manner that the plaintiffs in Roldan made such a showing.

c. Waiver

Plaintiff also argues Defendant should be found to have waived its right to have the action proceed in arbitration. The cases Plaintiff cites, however, concern situations where a defendant engages in litigation at length prior to seeking to compel arbitration. Plaintiff’s argument is that, once the parties stipulated to proceed by way of arbitration, Defendant did nothing to move the case forward. It is typically a plaintiff’s obligation to actively move her case forward, and a defendant has no obligation in this regard. Absent authority finding a waiver under similar circumstances, the Court finds Plaintiff failed to show Defendant waived its right to arbitrate by failing to take post-stipulation steps to move the arbitration forward.

d. Conclusion

Plaintiff’s motion to appoint an affordable arbitrator is denied due to the lack of on point authority. Plaintiff’s alternative motion to require Defendant to pay for the arbitration or to vacate the parties’ stipulation is denied due to lack of on point authority and insufficient showing of indigent status. Plaintiff’s request to vacate the stipulation due to waiver is denied due to lack of on point authority.

The parties’ stipulation to resolve the matter by way of binding arbitration remains in full force and effect. Plaintiff is ordered to give notice.