Jessica Fernandez v. SRGA Resort LP et al

CIVIL LAW & MOTION CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.

Caroline Geitner v. Tia Sonesouphab et al 24CV002118

MOTION FOR RELIEF FROM WAIVER OF OBJECTIONS TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS

TENTATIVE RULING: The motion is GRANTED.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

Plaintiff Caroline Geitner moves, pursuant to Code of Civil Procedure section 2031.300, subdivision (a), for relief from waiver of her objections to Requests for Production of Documents (Set Two) propounded by Defendant St. Joseph Health Northern California, LLC. (St. Joseph). Ms. Geitner so-moves on grounds that “the one-day delay in serving verified responses to Defendant’s requests was the result of inadvertent mistake and excusable neglect. Furthermore, Plaintiff has served substantially compliant responses to Defendant's requests, and Defendant will not be prejudiced by this Court granting relief . . ..” (Notice of Motion at 2:8-13.)

The Court finds, from the evidence presented, that Ms. Geitner has served a response that is in substantial compliance with the relevant provisions of the Civil Discovery Act, and that her failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2031.300, subd. (a).)

The Motion is, therefore, GRANTED.

Jessica Fernandez v. SRGA Resort LP et al 26CV001032

[1] DEFENDANT AUBERGE RESORTS LLC’S MOTION TO COMPEL ARBITRATION

TENTATIVE RULING: The motion is DENIED.

Defendant Auberge Resorts LLC (Auberge) moves for an order compelling Plaintiff Jessica Fernandez to arbitrate those claims asserted against Auberge through the operative First Amended Complaint (FAC) in this action.

A. LEGAL BACKGROUND

A proceeding to compel arbitration is, in essence, a suit in equity to compel specific performance of a contract. (California Teachers Assn. v. Governing Bd. (1984) 161 Cal.App.3d 393, 399.) On a motion to compel arbitration, supported by prima facie evidence of a written agreement to arbitrate the underlying controversy, the court must determine whether the agreement exists and, if any defense to its enforcement is raised, whether the agreement is enforceable. (Rosenthal v. Great Western Financial Sec.

Corp. (1996) 14 Cal.4th 394, 413.) The moving party bears the burden of proving the existence of the agreement by a preponderance of the evidence. (Ibid.) The opposing party bears the burden of producing evidence of and proving (by a preponderance) any fact necessary to any defense raised. (Ibid.) California law strongly favors arbitration. (Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 35 (Prima Donna).)

B. ANALYSIS

1. Auberge Fails to Provide the Court with a Competent Copy of the Arbitration Agreement

Auberge presents evidence that the Arbitration Agreement signed by Plaintiff was in Spanish. (See Declaration of Thomas Donavan at ¶ 5 (Donavan Decl.).) While Auberge provides a purported English language translation, that translation is not certified under oath by a qualified interpreter. (See Cal. Rules of Ct., rule 3.1110(g) [“Exhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter”]; see also Code Civ. Proc., § 2015.5 [requirements for written certification under oath].)

Ordinarily, the Court grants a moving party leave to correct defects in the form of its presentation of evidence. However, because the Court, here, finds that the Motion fails on independent, substantive, grounds, discussed below, granting Auberge leave to file a certification, under oath, of the translation would not alter the Court’s ruling.

2. Auberge is Not a Party to the Subject Arbitration Agreement

“The scope of arbitration is a matter of agreement between the parties. A party can be compelled to arbitrate only those issues it has agreed to arbitrate.” (Larkin v. Williams, Woolley, Cogswell, Nakazawa & Russell (1999) 76 Cal.App.4th 227, 230 (Larkin).) “There is no public policy in favor of forcing arbitration of issues the parties have not agreed to arbitrate. [Citation.] It follows that when presented with a petition to compel arbitration, the trial court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute.” (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505.) “[W]ith limited exceptions only parties to an arbitration agreement can enforce it or be required to arbitrate.” (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 17.)

Auberge is not a party to the subject arbitration agreement (Arbitration Agreement). (See Donavan Decl. at ¶ 5, Exhs. A and B.) In the Conclusion section of its supporting memorandum (Support Memo) Auberge asserts that “Auberge, as an affiliated entity, is entitled to enforce this agreement.” (Id. at 15:4.) Auberge does not, however, provide through its moving papers any discussion, argument, or citation to evidence in support of the assertion.

3. Equitable Estoppel Does Not Apply

Auberge argues that even as a non-party, it is entitled to enforce the Arbitration Agreement as against Plaintiff pursuant to the doctrine of equitable estoppel. (See Support Memo at 9:4, et seq.) “Under that doctrine . . . a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are ‘intimately founded in and intertwined’ with the underlying contract obligations.’ (Citations.) ‘By relying on contract terms in a claim against a nonsignatory defendant, even if not exclusively, a plaintiff may be equitably estopped from repudiating the arbitration clause contained in that agreement.’ (Citation.) ‘The rule applies to prevent parties from trifling with their contractual obligations.’ (Citation.)” (JSM Tuscany, LLC v.

Super. Ct. (2011) 193 Cal.App.4th 1222, 1237 (JSM).) The archetypal fact pattern to which the doctrine is applied involves a Plaintiff signatory suing a non-signatory defendant for breach of the contract containing the arbitration provision. (See, e.g., Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 265.) “‘The plaintiff’s actual dependence on the underlying contract in making out the claim against the non-signatory defendant is...always the sine qua non of an appropriate situation for applying equitable estoppel.’” (Goldman v.

KPMG, LLP (2009) 173 Cal.App.4th 209, 229, quoting In re Humana Inc. Managed Care Litigation (11th Cir. 2002) 285 F.3d 971, emphasis omitted.)

Auberge fails to persuade the Court that Plaintiff’s claims against it are dependent on the Arbitration Agreement. To the contrary, the Court can find no suggestion in the allegations of the FAC that Plaintiff’s claims arise out of the Arbitration Agreement or that Plaintiff relies on the agreement in stating any of her claims. Auberge fails to cite to authority supporting its argument that Plaintiff’s assertion of the same claims against co-defendant SRGA, who has agreed to arbitrate such claims, constitutes grounds for invoking the doctrine in Auberge’s favor. The Court is aware of no such authority.

Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, (Metaclad), relied on by Auberge, is distinguishable. In Metaclad, the plaintiff’s claims against the signatory and non-signatory defendants all arose out of the contract containing the arbitration provision that the non-signatory defendants sought to enforce against the plaintiff. (See id. at p. 1717 [“Metalclad’s breach of contract claim against Ventana could not be more ‘intimately founded in and intertwined with’ the underlying Geologic contract”].)

Jarboe v. Hanlees Auto Group (2020) 53 Cal.App.5th 539 (Jarboe) the other case cited by Auberge in its Support Memo, supports the Court’s conclusion. “Jarboe’s claims against the company, DKD of Davis, arising from his employment agreement will proceed to arbitration. The claims against other defendants for which there is no agreement to arbitrate will not. The mere fact that the claims against Leehan of Davis and the other defendants may be related to the claims DKD of Davis is arbitrating against Jarboe does not compel application of equitable estoppel.” (Id. at p. 55.)

4. The Court is Barred from Compelling Plaintiff to Arbitrate Her Claims by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

Finally, the Court is barred, by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), from compelling Plaintiff to arbitrate her claims over her objections.

“At the election of the person alleging conduct constituting a sexual harassment dispute . . . no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to . . . the sexual harassment dispute.” (9 U.S.C. § 402, subd. (a).) “The term ‘sexual harassment dispute’ means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” (9 U.S.C. § 401.)

The Court finds that Plaintiff has alleged conduct constituting a sexual harassment dispute. (See, e.g., FAC at ¶¶ 12-14, 18, 25, Fourth Cause of Action, Exhibit A.) As such, by a plain reading of the EFAA, at Plaintiff’s election, the Arbitration Agreement asserted here is unenforceable.

Auberge argues that the facts alleged “are insufficient to state a claim for sexual harassment.” (Id. at 1:15-16.) Auberge fails, however, to discuss the elements of a claim for sexual harassment, and fails to specifically identify any element that Plaintiff fails to allege. Rather, Auberge merely asserts that “Plaintiff’s First Amended Complaint provides minimal support for her claim of sexual harassment.” (Support Memo at 2:26-27.) It is not the Court’s obligation to review the FAC in an effort to find support for Auberge’s argument that it fails to state a claim for sexual harassment. (See Quantum Cooking Concepts, Inc. v.

LV Associates, Inc. (2011) 197 Cal. App. 4th 927, 934 [“Rules of Court rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide”].)

C. CONCLUSION

For the foregoing reasons, the Motion to compel Plaintiff to arbitrate her claims against Auberge is DENIED.

[2] DEFENDANT AUBERGE RESORTS LLC’S MOTION TO STAY PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING: The motion is MOOT.

Defendant Auberge Resorts LLC (Auberge) moves, pursuant to Code of Civil Procedure section 1281.4, for an order staying the case pending resolution of the arbitration in the action filed by Plaintiff Jessica Fernandez.

In light of the concurrent ruling on Auberge’s Motion to Compel Arbitration, the instant Motion is MOOT.

PROBATE CALENDAR – Hon. Joseph J. Solga, Dept. B (Historic Courthouse) at 8:30 a.m.

Conservatorship of James Edward Zabriskie 23PR000103

[1] SECOND ACCOUNT AND REPORT OF CONSERVATOR; PETITION FOR ALLOWANCE OF FEES TO CONSERVATOR OF PERSON AND ESTATE AND ATTORNEY FOR CONSERVATOR

[2] REVIEW HEARING

TENTATIVE RULING: The Petition is GRANTED, including fees as prayed. After a review of the matter, the Court finds the Conservator is acting in the best interest of the Conservatee. Thus, the matter is set for a Review – Biennial and for an Accounting in two years on July 28, 2028, at 8:30 a.m. in Dept. B. All accounting documents must be filed at least 30 days prior to the hearing. The Court Investigator shall prepare a biennial investigator report for the next hearing date. The Clerk is directed to send notice to the parties.

Estate of Karl J Porter 24PR000279

REPORT OF ADMINISTRATOR, PETITION FOR FINAL DISTRIBUTION AND FOR STATUTORY ATTORNEY’S FEES WITH WAIVER OF ACCOUNT (filed 2/13/26)

TENTATIVE RULING: The petition is GRANTED, including fees as prayed.

Estate of James E Lough 26PR000055

PETITION FOR INSTRUCTION TO REVOKE TRUST BY ITS OWN TERMS

APPEARANCE REQUIRED. The Petition is in order and Petitioner has submitted evidence which, if the Petition is uncontested, is sufficient to prima facie support the requested relief. (See Prob. Code § 1022.) However, all interested parties have the right to appear and object to the Petition orally or in writing at the hearing. (See Prob. Code § 1043.) If no one appears to oppose the petition, the Court intends to grant the Petition as prayed.

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