Westcoast Therapy, Inc. v. Xavier

(Id. at p. 33.) “Also pertinent are the effects of strict enforcement on the rights of the parties and the furtherance of justice. [Citations.]” (Ibid.)

Here, although Defendant provides that the opposition was served one day late, as well as was not served by electronic service such that Defendant’s time to review and respond to the opposition was “materially reduced,” Defendant does not show any prejudice from late opposition. Defendant timely filed and served a reply.

Merits Defendant contends that this action arises from contracts that require mediation as a condition precedent and, if mediation fails, binding arbitration, and that despite mandatory ADR provisions, Plaintiff, Westcoast Therapy, Inc. (“Plaintiff”), initiated litigation rather than mediation or arbitration, and thereby breached the ADR provisions. Defendant asserts that she did not waive the right to arbitration.

Plaintiff contends that the parties entered into three (3) separate agreements, only one of which contains an arbitration provision; that the arbitration provision is unenforceable; and that even if it were enforceable, it would be enforceable only as to the Confidentiality and Proprietary Rights Agreement. Plaintiff also asserts that the law of this case has already been established as this Court has ruled on the issue of arbitration and determined that Defendant waived the right to arbitrate in March of 2025 when the Court denied Defendant’s motion to dismiss.

Plaintiff additionally asserts that the statute of limitations has run as Defendant filed this motion on May 6, 2026, more than four years after Plaintiff last refused to arbitrate on April 28, 2022. Lastly, Plaintiff contends that assuming the law of the case has not been established, which it has, and assuming that the statute of limitations has not run, which it has, and assuming that the all three (3) agreements contained an arbitration provision, which they do not, and finally assuming that the arbitration provision in the Confidentiality Agreement was enforceable, which it is not, Defendant has still waived her right to arbitrate.

Existence of Agreement to Arbitrate Here, Defendant has shown, and Plaintiff does not dispute, that an agreement to arbitrate exists in an agreement entitled, “Confidentiality and Proprietary Rights Agreement (California)” (the “Confidentiality Agreement”). (Ex. 1 to Motion, Confidentiality Agreement.) The Confidentiality Agreement states, in part:

“2. Dispute Resolution. Upon the occurrence of any dispute or disagreement the Parties hereto arising out of or in connection with any term or provision of this Agreement, the subject matter hereof, or the interpretation or enforcement hereof (in each case, a “Dispute”), the Parties shall engage in informal, good faith discussions and attempt to resolve the Dispute during a period of ten (10) Business Days after a Party (the “Plaintiff”) notifies the other Party (the “Defendant”) of such Dispute in writing. If the Parties are unable to resolve the Dispute during such period, then the Parties shall comply with the following dispute resolution procedures:

“(a) Mediation. [¶.]

“(b) Arbitration. If the Parties are unable to resolve the Dispute pursuant to Section 2(a) above, then the Parties shall submit the Dispute to final and binding arbitration in Los Angeles, California, administered by JAMS, or it successor, in accordance with the rules and procedures of JAMS then in effect, within ten (10) Business Days after conclusion of the mediation contemplated in Section 2(a) above. The Parties agree that any and all Disputes that are submitted to arbitration in accordance with this Agreement shall be decided by a neutral arbitrator who is a retired judge or attorney licensed to practice law and who is experienced in complex commercial transactions. . . . “

(Ex. 1 to Motion, Confidentiality Agreement, § 2(a)-(b).)

However, based on the allegations in the Complaint, that is not the only agreement between the parties that is at issue in this action. The Complaint alleges that there are three (3) agreements: X Brands Asset Purchase Agreement (“XB APA”), that Good Bites Asset Purchase Agreement (“GB APA”) and that Confidentiality and Proprietary Rights Agreement (“Confidentiality Agreement”). (Complaint, ¶ 10.) Plaintiff’s counsel provides that XB APA and GB APA do not contain arbitration provisions. (Declaration of Shanon Slack (“Slack Decl.”), ¶ 4.)

Defendant does not show that any of Plaintiff’s claims in this action fall within the scope of the arbitration clause in the Confidentiality Agreement, nor does Defendant address the XB APA and GB APA relative to the Confidentiality Agreement. Therefore, Defendant does not meet her burden to show the existence of an arbitration agreement that encompasses the claims in this action. Even assuming that Defendant did meet this burden, Defendant’s motion to compel arbitration is untimely, and she has waived her right to arbitrate, as discussed below.

Statute of Limitations Plaintiff contends that the statute of limitations has run, and that a petition to compel arbitration must be brought within four years after the party to be compelled has refused to arbitrate, citing to Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19.

The California Supreme Court in Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19 explained as follows: “A petition to compel arbitration must be brought within four years after the party to be compelled has refused to arbitrate. [Citation.] This rule has nothing to do with the statute of limitations on the underlying claims. Instead, the rule reflects our understanding that a petition to compel arbitration states a separate cause of action subject to its own limitation period.

As we have explained, ‘[a]n action to compel arbitration “is in essence a suit in equity to compel specific performance of a contract” ’ and is, thus, subject to the four-year statute of limitations for actions founded upon written contracts. [Citations.]” (Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 29.) “Under section 1281.2, ‘a party to an agreement to arbitrate may not bring an action to compel specific performance of the arbitration provision until he or she can allege not only the existence of the agreement, but also that the opposing party refuses to arbitrate the controversy.

Therefore, it appears that a cause of action to compel arbitration does not accrue until one party has refused to arbitrate the controversy.’ [Citation.]” (Ibid.)

Although Defendant filed a motion to compel arbitration, as opposed to a petition to compel arbitration, there is no basis for treating a motion different from a petition. Applying the above rules to Defendant’s motion to compel arbitration, Defendant’s action to compel Plaintiff to arbitrate accrued on April 28, 2022, when Plaintiff refused to arbitrate, and Defendant filed the instant motion to compel arbitration on May 6, 2026, more than four years after Plaintiff refused to arbitrate. (Slack Decl., ¶ 4.) As a result, Defendant’s motion to compel was untimely under the applicable statute of limitations.

Law of the Case Plaintiff contends that the law of case has already been established as this Court has ruled on the issue of arbitration and determined that Defendant waived the right to arbitrate.

“ ‘The doctrine of “law of the case” deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ [Citation.]” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.)

A prior ruling by this Court does not implicate the law of the case doctrine as it is not an appellate decision, nor is this motion part of a retrial or appeal. In fact, a trial court has the inherent power to reconsider its own interim rulings. (Le Francios v. Goel (2005) 35 Cal. 4th 1094, 1108; Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 53 Cal.App.5th 733, 788; In re Marriage of Barthold (2008) 158 Cal. App. 4th 1301, 1307-08.) “Even without a change of law, a trial court may exercise its inherent jurisdiction to reconsider an interim ruling. [Citation.]” (Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 237.) Based on the foregoing, Plaintiff fails to show that the law of the case doctrine applies in this case and/or dictates the ruling on Defendant’s instant motion to compel arbitration.

Waiver Plaintiff contends that Defendant has still waived her right to arbitrate as this action was filed on April 26, 2022, and Defendant was aware of her right to arbitrate the Confidentiality Agreement as early as August 1, 2021, when the agreement was executed, and no later than April 28, 2022, when Defendant’s then counsel, Matthew Urbach, contacted Plaintiff’s counsel regarding arbitration, but has acted in a manner that suggested that she did not intend to invoke her purported right to arbitrate.

Separate from the statute of limitation for a petition to compel arbitration, a party may not postpone arbitration indefinitely by delaying the demand. (Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 29.) “[A] party may waive the right to compel arbitration by failing to demand arbitration within a time limit specified for that purpose in a statute. [Citations.] A party may also waive the right to compel by failing to comply with a time limit for demanding arbitration specified in the contract. [Citation.]” (Id. at p. 30.) “When no time limit for demanding arbitration is specified, a party must still demand arbitration within a reasonable time. [Citation.]

This rule is an application of the general principle of contract law articulated in Civil Code section 1657, to the effect that, ‘[i]f no time is specified for the performance of an act required to be performed, a reasonable time is allowed.’ [Citation.]

‘[W]hat constitutes a reasonable time is a question of fact, depending upon the situation of the parties, the nature of the transaction, and the facts of the particular case.’ [Citation.]” (Ibid.)

“[I]n determining whether a party to an arbitration agreement has lost the right to arbitrate by litigating the dispute, a court should treat the arbitration agreement as it would any other contract, without applying any special rules based on a policy favoring arbitration. That is, courts should apply the same procedural rules that they would apply to any other contract. [Citation.]” (Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 583 (“Quach”).) Determining whether a party has lost its right to compel arbitration as a result of its litigationrelated conduct is governed by generally applicable state law contract principles, and these principles do not require a showing of prejudice to establish waiver. (Ibid.)

“To establish waiver under generally applicable contract law, the party opposing enforcement of a contractual agreement must prove by clear and convincing evidence that the waiving party knew of the contractual right and intentionally relinquished or abandoned it. [Citations.]” (Quach, supra, 16 Cal.5th at p. 584.) “Under the clear and convincing evidence standard, the proponent of a fact must show that it is ‘highly probable’ the fact is true. [Citation.] The waiving party’s knowledge of the right may be ‘actual or constructive.’ [Citation.]” (Ibid.) “Its intentional relinquishment or abandonment of the right may be proved by evidence of words expressing an intent to relinquish the right or of conduct that is so inconsistent with an intent to enforce the contractual right as to lead a reasonable factfinder to conclude that the party had abandoned it. [Citation.]” (Ibid.) “The waiver inquiry is exclusively focused on the waiving party’s words or conduct; neither the effect of that conduct on the party seeking to avoid enforcement of the contractual right nor that party’s subjective evaluation of the waiving party’s intent is relevant. [Citations.]” (Id. at p. 585) “This distinguishes waiver from the related defense of estoppel, ‘which generally requires a showing that a party’s words or acts have induced detrimental reliance by the opposing party.’ [Citations.]” (Ibid.) “To establish waiver, there is no requirement that the party opposing enforcement of the contractual right demonstrate prejudice or otherwise show harm resulting from the waiving party’s conduct. [Citations.]” (Ibid.)

“Although a written agreement to arbitrate an existing or future dispute is generally enforceable, a petition to compel arbitration will be denied when the right has been waived by the proponent’s failure to properly and timely assert it. [Citations.]” (Guess”, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557 [finding right to arbitrate was waived where defendant knew about the arbitration provision since before the lawsuit was filed and served, but waited three months to demand arbitration, did not plead its purported right to arbitrate as an affirmative defense, acted inconsistently with the right to arbitrate as it fully participated in the discovery process, and caused prejudice to plaintiff].) “At a minimum, the failure to plead arbitration as an affirmative defense is an act inconsistent with the later assertion of a right to arbitrate.” (Id. at p. 558.)

Here, Defendant submits a declaration stating, “[f]rom the beginning of this case, I raised mediation and arbitration in communications, pleadings, and court proceedings.” (Declaration of Angelica Xavier, ¶ 3.) Defendant also states, “I did not intentionally waive my right to arbitration. Any delay occurred during the COVID-19 pandemic while I was self-represented and suffering from traumatic brain injuries caused by multiple serious motor vehicle accident.” (Id., ¶ 5.) Defendant additionally states, “[a]t no point during the Case Management Conference on March 6, 2025, or any other hearing, did I state that I preferred a jury trial over arbitration; I was simply following the court’s procedural scheduling while continuing to seek ADR.” (Id., ¶ 4.)

The motion attaches exhibits includes Defendant’s motion to set aside default and default judgment filed on March 23, 2023, where Defendant references that the Confidentiality Agreement requires the parties to first mediate and if unsuccessful, then proceed to JAMS Arbitration; Defendant’s Answer dated March 18, 2023, stating that Defendant “reserves the right to file an Amended Answer should this Court deny her forthcoming motions for JAMS Mediation and Arbitration if necessary;” and a Minute Order dated September 29, 2022, for a Case Management Conference indicating that Defendant requested to attend mediation. (Exs. 3-5 to Motion.) Defendant also attaches a Minute Order dated March 6, 2025, for a Case Management Conference where a jury trial was scheduled. (Ex. 7 to Motion.)

The foregoing shows that Defendant made no mention of arbitration at the September 29, 2022, Case Management Conference, and that Defendant subsequently raised the issue of arbitration in March 2023. The problem, however, is that Defendant never moved to compel arbitration, or otherwise took any action to compel arbitration.

Notably, Plaintiff’s counsel provides that on April 28, 2022, Plaintiff’s counsel was contacted by Matthew Urbach, Esq., Defendant’s then-counsel, and that Plaintiff’s counsel informed Mr. Urbach that Plaintiff refused to arbitrate. (Slack Decl., ¶ 4; see Ex. 8 to Motion.) Thereafter, on July 29, 2022, Plaintiff’s counsel informed Mr. Urbach that Plaintiff was willing to move forward with arbitration, and subsequently provided Mr. Urbach with the names of five (5) different mediators, but that neither Mr. Urbach nor Defendant ever followed up with Plaintiff’s counsel regarding arbitration or mediation. (Id., ¶ 5.)

Despite the fact that Defendant may have raised the issue of arbitration in 2022 and March 2023, Defendant never sought to compel arbitration, and did not follow up with Plaintiff’s counsel in July 2022 when Plaintiff’s counsel informed Defendant’s then-counsel that Plaintiff was willing to arbitrate. Defendant did not properly seek to compel arbitration until Defendant filed this motion on May 6, 2026, more than four (4) years after Defendant requested arbitration in April 2022.

To the extent that Defendant’s motion to dismiss that was filed on March 11, 2025, could be construed as an attempt to compel arbitration, Defendant waited nearly three (3) years after Plaintiff informed Defendant’s thencounsel on April 28, 2022, that Plaintiff refused to arbitrate to file that motion.

The failure to seek to compel arbitration for years despite Defendant’s knowledge of the arbitration provision in the Confidentiality Agreement constitutes conduct that is inconsistent with an intent to enforce the right to arbitrate so as to lead to the conclusion that Defendant has abandoned the right to arbitrate. Thus, the evidence indicates that Defendant has waived the right to arbitrate.

Based on the foregoing, Defendant’s motion to compel arbitration is DENIED.

Plaintiff to give notice. 105 Fenning vs. Alvord, 25-01519619

Defendant, Judith Alvord (“Defendant”), moves for an order quashing the service of summons and Complaint.

Defendant contends that the Court lacks jurisdiction over her as she has not been properly served with the summons and Complaint. Defendant asserts that the process server’s declaration as to the alleged service of summons and Complaint on Defendant is false as she would out of the country on vacation, and not at home when she was allegedly personally served.