Oppenheimer v. Centinela Storage Assocs.
| Docket Number | B321544 |
| Decision Date | 27 November 2023 |
| Parties | STEVEN OPPENHEIMER et al., Plaintiffs and Respondents, v. CENTINELA STORAGE ASSOCIATES, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No.19STCV24447, Deirdre Hill, Judge. Affirmed.
ClintonBailey, Mark C. Bailey; Schumann Arevalo, Eric Arevalo, Kimberly Hisa; Law Offices of Kathryn M. Davis and Kathryn M. Davis for Defendant and Appellant.
Lynberg & Watkins, Michael J. Larin; Dordick Law Corporation, Gary A. Dordick and Robert B. Reagan for Plaintiffs and Respondents.
Shortly before trial, Centinela Storage Associates (CSA) unsuccessfully petitioned the trial court to compel arbitration. We affirm the court's order. We also deny pending motions to dismiss and to impose sanctions.
In October 2018, Steven Oppenheimer entered into a contract to rent a storage unit from Public Storage, Inc. The rental contract contained an arbitration provision. Weeks later Oppenheimer's minor child Avery was injured at the facility in a collision with a motorized cart alleged to have been operated by a Public Storage employee.
In July 2019, Oppenheimer, his wife Shelice, and his three children sued Public Storage, Inc. and its employee (collectively Public Storage), and Does 1-10. In December 2019, the Oppenheimers identified Doe No. 1 as CSA, the owner of the property on which the storage facility is located.
Although CSA had not yet appeared in the litigation, it engaged in discovery in cooperation with the Oppenheimers. At CSA's request, Avery Oppenheimer underwent a neuropsychological evaluation in January 2020 and a neurosurgeon's evaluation in February 2020. CSA agreed to permit the Oppenheimers access to the storage facility and to test the motorized cart involved in the underlying incident. The parties agreed these events qualified as if they had been requested under the Code of Civil Procedure.
In their first amended complaint, filed July 14, 2020, the Oppenheimers alleged causes of action for negligence and premises liability. CSA was served with the Oppenheimers' first amended complaint on August 20, 2020. CSA filed an answer and a cross-complaint against Steven and Shelice Oppenheimer.
CSA responded in October 2020 to written discovery requests propounded by the Oppenheimers. CSA had to investigate to provide discovery responses.
On January 15, 2021, CSA filed a first amended answer to the first amended complaint. In the first amended answer, CSA relied on the contract in six different affirmative defenses. On information and belief, CSA asserted the contract released it from liability: "Plaintiffs entered into an agreement with Defendants and/or other parties in which Plaintiffs assumed responsibility and released Defendants and/or other parties from liability for all claims of injuries that could occur arising out of Plaintiffs' use of the subject property." CSA alleged the Oppenheimers had waived their claims when they entered into the contract, under which they "assumed responsibility for all claims of injuries that could occur arising out of Plaintiffs' use of the subject property." CSA alleged the Oppenheimers' damages were limited because the contract "limits recovery of said alleged injuries, damages, and losses (if any)." The contract was also the basis for affirmative defenses of ratification, consent, and assumption of the risk.
In 2021 the Oppenheimers answered the cross-complaint. The parties participated in two unsuccessful mediations. CSA filed a first amended cross-complaint adding causes of action against Public Storage. The first amended cross-complaint was later stricken because it was filed without leave. Public Storage moved to compel arbitration on CSA's cross-claims; this was denied as moot when CSA's first amended cross-complaint was stricken.
On August 31, 2021, the Oppenheimers filed a motion seeking trial preference under Code of Civil Procedure section 36 due to the ages of the minor plaintiffs. CSA opposed the motion for trial preference. While the motion for preference was pending, CSA sought leave to file its first amended crosscomplaint, which the Oppenheimers opposed.
The trial court granted the motion for trial preference on April 5, 2022. The court set the trial for August 1, 2022, with a discovery cut-off of July 5, 2022.
CSA did not propound written discovery to the Plaintiffs until March 2022. Between March 2022 and May 2022, CSA propounded a total of 26 sets of form interrogatories, special interrogatories, and document production requests to the five plaintiffs. In May 2022, CSA filed an ex parte application and a motion to compel a person most qualified deposition. Also in May 2022, during a meet and confer session concerning the scheduling of depositions, CSA's counsel complained to the Oppenheimers' counsel that she lacked sufficient time to do all the work she needed to do. The Oppenheimers' counsel observed that CSA should have begun discovery earlier, and CSA's counsel responded that she had been told not to do anything earlier.
As of June 2022, the Oppenheimers had retained 11 experts, produced 2460 pages of documentation, and taken and attended depositions.
CSA deposed Public Storage Inc's person most qualified on May 27, 2022. That day, CSA's attorney received a copy of the rental contract for the Oppenheimers' storage unit.
Less than two months before trial, on June 9, 2022, [1] CSA moved to compel the Oppenheimers to arbitrate the causes of action against it and to stay proceedings pending completion of arbitration. CSA also applied ex parte for the court to either continue the trial date or to advance the hearing and shorten notice on a discovery matter and on the pending motion to compel arbitration.
The court denied CSA's motion to compel arbitration on June 29, 2022. The trial court found there was no arbitration agreement between the Oppenheimers and CSA and the arbitration provision did not cover personal injury claims. Finally, the court found that even if CSA could enforce the arbitration provision in the rental contract and the provision covered the claims asserted in the lawsuit, CSA had waived its right to arbitration by engaging in acts inconsistent with that purported right, to the prejudice of the Oppenheimers.
CSA appealed the denial of its motion to compel arbitration, staying the pending trial.
An order denying a petition to compel contractual arbitration is appealable. (Code Civ. Proc., § 1294, subd. (a); Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 349.) CSA argues each finding of the trial court was incorrect and asserts 1) it is entitled to invoke the applicability of the arbitration provision, 2) the arbitration clause covers personal injury claims, and 3) CSA did not waive the right to arbitrate.
We examine the trial court's ruling that CSA waived its right to compel arbitration under the substantial evidence standard of review. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 (St. Agnes).) Unless the facts are undisputed, not the case here, "the determination of waiver is a question of fact, and the trial court's finding, if supported by sufficient evidence, is binding on the appellate court." (Ibid.) "The appellate court may not reverse the trial court's finding of waiver unless the record as a matter of law compels finding nonwaiver." (Kokubu v. Sudo (2022) 76 Cal.App.5th 1074, 1083 (Kokubu).)
We conclude that even if CSA were entitled to invoke the arbitration provisions of the storage unit contract and the claims in this action were within the scope of the arbitration provision, the trial court did not err when it concluded CSA had waived its right to arbitration.
Code of Civil Procedure section 1281.2 provides in relevant part: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner." (Code Civ. Proc., § 1281.2.) The California Supreme Court has held that "no single test delineates the nature of the conduct that will constitute a waiver of arbitration. [Citations.]' "In the past, California courts have found a waiver of the right to demand arbitration in a variety of contexts, ranging from situations in which the party seeking to compel arbitration has previously taken steps inconsistent with an intent to invoke arbitration [citations] to instances in which the petitioning party has unreasonably delayed in undertaking the procedure." '" (St. Agnes, supra, 31 Cal.4th at pp. 1195-1196.)
In St. Agnes, the Supreme Court identified factors relevant to the determination of a waiver claim:" 'In determining waiver, a court can consider "(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether 'the litigation machinery has been substantially invoked' and the parties 'were well into preparation of a lawsuit' before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) 'whether important intervening steps [e.g., taking advantage of judicial...
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