Motion to Stay Proceedings in OLUSOJI FANOIKI VS. 1081-1087 MISSISSIPPI STREET ET AL| Trellis.Law

On August 08, 2018 a Motion-Secondary was filed involving a dispute between Fanoiki, Olusoji, and 1081-1087 Mississippi Street, 1081-1087 Mississippi Street Homeowners', Does 1 To 10 Inclusive, Reed, Brian, for CONTRACT/WARRANTY in the District Court of San Francisco County.

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NA’IL BENJAMIN, ESQ. (State Bar No. 240354)
1 ALLYSSA VILLANUEVA, ESQ. (STATE BAR NO. 312935)
BENJAMIN LAW GROUP, P.C.
2 1290 B Street, Suite 314 ELECTRONICALLY
Hayward, CA 94541
3 Telephone: (510) 897-9967 F I L E D
Facsimile: (510) 439-2632 Superior Court of California,
4 Email: nbenjamin@benjaminlawgroup.com
County of San Francisco

allyssa@benjaminlawgroup.com 09/25/2019
5 Clerk of the Court
BY: EDNALEEN ALEGRE
Attorneys for Plaintiff Deputy Clerk
6 OLUSOJI FANOIKI
7

8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN FRANCISCO
10

11 CASE NO. CGC-18-568750
12
OLUSOJI FANOIKI, an individual DECLARATION OF ALLYSSA
13 VILLANUEVA, ESQ. IN SUPPORT OF
Plaintiff, PLAINTIFF’S OPPOSITION TO
14 DEFENDANTS’ MOTION TO COMPEL
vs. ARBITRATION AND TO STAY ACTION
15
Dept: 501
16 1081-1087 MISSISSIPPI STREET Time: 9:30am
HOMEOWNERS’ ASSOCIATION, et. al. Date: October 10, 2019
17
Defendants.
18

19
20
I, ALLYSSA VILLANUEVA, hereby declare that:
21
1. I am a staff attorney at Benjamin Law Group, P.C., attorneys of record for
22
Plaintiff OLUSOJI FANOIKI (“Plaintiff”). All facts stated herein are based on my personal
23
knowledge. If called to testify, I would and could competently do so.
24
2. The parties are governed by the Covenants, Conditions, and Restrictions
25
(“CC&RS”). Attached hereto as Exhibit A is a true and correct copy of the CC&Rs.
26
3. Prior to filing suit, the parties met and conferred from approximately March 2018
27
to July 2018. The meet and confer efforts were unsuccessful in reaching resolution so the parties
28
1
Declaration of A. Villanueva ISO Opposition to Motion to Compel Arbitration and to Stay Proceedings
Case No.: CGC-18-568750
1 proceeded to formal mediation. Attached hereto as Exhibit B is a true and correct copy of
2 relevant correspondence.
3 4. The parties completed a full day of mediation with JAMS mediator Hon. Ellen
4 Sickles James on July 19, 2018. Attached hereto as Exhibit C is a true and correct copy of
5 relevant documentation. When mediation was unsuccessful, Plaintiff filed suit.
6 5. Plaintiff opposed Defendants’ first Motion to compel arbitration filed in February
7 2019. After the parties fully briefed the Motion, Defendants voluntarily withdrew it without
8 reason. Attached hereto as Exhibit D is a true and correct copy of the Opposition brief filed on
9 or about February 26, 2019 and Defendants’ request to voluntarily withdraw their Motion. See
10 also docket.
11 6. On or about June 12, 2019, Defendants sent Plaintiff a renewed request to
12 arbitrate which failed to address any of the arguments raised in Plaintiff’s Opposition to the first
13 Motion to compel filed in February 2019. Attached hereto as Exhibit E is a true and correct
14 copy of the relevant correspondence.
15 7. Defendants continued to request that the parties mediate, NOT arbitrate during the
16 pendency of this action. In July 2019, Defendants sent a request to Plaintiff to discuss
17 “mediation” (not arbitration) of this case. Defendants renewed their request to Plaintiff to
18 “mediate” (not arbitrate) on or about September 5, 2019; one week before filing the present
19 motion to compel arbitration. Attached hereto as Exhibit F is a true and correct copy of the
20 relevant correspondence.
21 8. Defendants propounded judicial discovery to Plaintiff in December 2018
22 including Special Interrogatories exceeding the standard amount allowed by statute. Plaintiff
23 provided responses and document production in January 2019. Plaintiff engaged in meet and
24 confer with Defendants in March 2019 when threatened with a motion to compel further
25 responses. Plaintiff also supplemented his document production in March 2019. Attached
26 hereto as Exhibit G is a true and correct copy of relevant documents and correspondence.
27

28
2
Declaration of A. Villanueva ISO Opposition to Motion to Compel Arbitration and to Stay Proceedings
Case No.: CGC-18-568750
1 9. Plaintiff has been prejudiced by the current stay and any further stay in that he is
2 prevented from conducting his own discovery into Defendants and being unable to challenge the
3 lifting of the preliminary injunction that was preventing Defendants from foreclosing and selling
4 Plaintiff’s personal residence. Plaintiff has been prejudiced by Defendants’ unreasonable delay
5 in bringing this Motion in that the case has been pending for over one (1) year. During the year,
6 Plaintiff has provided responses to Defendants judicial discovery; expended time and monies
7 meeting and conferring about discovery and providing supplemental discovery; expended time
8 and monies litigating the preliminary injunction and Defendants’ three attempts to lift the
9 injunction requiring extensive motion practice; and Defendants continually requesting
10 “mediation”; not arbitration.
11

12 I declare under penalty of perjury of the laws of the state of California that the foregoing
13 is true and correct. Executed this 25th day of September 2019 at Hayward, California.
14
____________________________
15
ALLYSSA VILLANUEVA, ESQ.
16

19
20

28
3
Declaration of A. Villanueva ISO Opposition to Motion to Compel Arbitration and to Stay Proceedings
Case No.: CGC-18-568750
EXHIBIT “A”
EXHIBIT “B”
From: Jeanne Grove
To: Na"il Benjamin; "Alex Grasso"
Cc: Allyssa Villanueva; Karlyn Swan
Subject: RE: 1087 Mississippi Street, San Francisco, California
Date: Thursday, April 12, 2018 10:43:43 AM

Ok, just call me when you are done. I’m at the office: (415) 673-5600.

Thanks.

A. Jeanne Grove, Esq.
Goldstein, Gellman, Melbostad, Harris & McSparran ("G3MH"), LLP
1388 Sutter Street, Suite 1000
San Francisco CA 94109-5494
Voice: 415/673-5600, ext. 244
Fax: 415/673-5606
Email: JGrove@g3mh.com
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE
TRANSMISSION, AND MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU RECEIVED THIS E-
MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS
STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND
PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR
COOPERATION.

From: Na'il Benjamin
Sent: Thursday, April 12, 2018 10:40 AM
To: 'Alex Grasso' ; Jeanne Grove
Cc: Allyssa Villanueva ; Karlyn Swan

Subject: RE: 1087 Mississippi Street, San Francisco, California

Currently on a call. My cell is best: 510.776.4333. What time is good?

Get Outlook for Android

From: Jeanne Grove
Sent: Thursday, April 12, 2018 10:34:21 AM
To: Na'il Benjamin; 'Alex Grasso'
Cc: Allyssa Villanueva; Karlyn Swan
Subject: RE: 1087 Mississippi Street, San Francisco, California

Yes, I am. I’ll call you shortly.

From: Na'il Benjamin
Sent: Thursday, April 12, 2018 9:37 AM
To: Alex Grasso
Cc: 'Jeanne Grove' ; Allyssa Villanueva ;
Karlyn Swan
Subject: RE: 1087 Mississippi Street, San Francisco, California

Is Jeanne available for a call this morning?

Best regards,

Na’il Benjamin
Benjamin Law Group, P.C.
1290 B Street, Suite 314
Hayward, CA 94541
(510) 897-9967 (East Bay)
(510) 776-4333 (Cell)
(415) 349-3334 (Fax)
San Francisco | Oakland | Los Angeles

From: Alex Grasso
Sent: Tuesday, April 10, 2018 2:23 PM
To: Na'il Benjamin
Cc: 'Jeanne Grove' ; Allyssa Villanueva ;
Karlyn Swan
Subject: RE: 1087 Mississippi Street, San Francisco, California

Hello Mr. Benjamin,

Do you have time Thursday morning for a phone call with Jeanne?
Thank you,
Alex Grasso, Paralegal
Goldstein, Gellman, Melbostad, Harris & McSparran, LLP
1388 Sutter Street, Suite 1000
San Francisco, CA 94109-5494
Telephone: (415) 673-5600 ext. 234
Facsimile: (415) 673-5606
Email: agrasso@g3mh.com
g3mh.com

From: Na'il Benjamin
Sent: Tuesday, April 10, 2018 12:20 PM
To: Alex Grasso ; prosenberg@haasnaja.com
Cc: 'Jeanne Grove' ; Allyssa Villanueva ;
Karlyn Swan
Subject: RE: 1087 Mississippi Street, San Francisco, California

Counsel:

Our office represents Mr. Fanoiki going forward. Please let me know when we can
have an initial call. I am available in the late afternoon, and can be available
tomorrow, and again on Thursday morning.

Best regards,

Na’il Benjamin
Benjamin Law Group, P.C.
1290 B Street, Suite 314
Hayward, CA 94541
(510) 897-9967 (East Bay)
(510) 776-4333 (Cell)
(415) 349-3334 (Fax)
San Francisco | Oakland | Los Angeles

From: Alex Grasso
Sent: Wednesday, April 4, 2018 5:02 PM
To: prosenberg@haasnaja.com; Na'il Benjamin
Cc: 'Jeanne Grove'
Subject: RE: 1087 Mississippi Street, San Francisco, California

Dear Ms. Rosenberg and Mr. Benjamin,
Please see the attached letter from Jeanne Grove with respect to the above referenced matter.
Thank you,
Alex Grasso, Paralegal
Goldstein, Gellman, Melbostad, Harris & McSparran, LLP
1388 Sutter Street, Suite 1000
San Francisco, CA 94109-5494
Telephone: (415) 673-5600 ext. 234
Facsimile: (415) 673-5606
Email: agrasso@g3mh.com
g3mh.com

NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE
TRANSMISSION, AND MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU RECEIVED THIS
E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-
MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-
MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR
YOUR COOPERATION.
EXHIBIT “C”
From: Jesse Dienner
To: JGrove@g3mh.com; Na"il Benjamin
Cc: agrasso@g3mh.com; Karlyn Swan; Lily Kaufman
Subject: 1081-1083-1085-1087 Mississippi Street Homeowners Association vs. Fanoiki, Olusoji - REF no. 1100090901 -
Confirmation Notice
Date: Tuesday, July 17, 2018 5:06:38 PM
Attachments: James Ellen Mediation [682].pdf
Document Retention Policy.pdf

July 17, 2018
NOTICE TO ALL PARTIES
RE: 1081-1083-1085-1087 Mississippi Street Homeowners Association vs. Fanoiki,
Olusoji
Reference #: 1100090901
Dear Parties:

Thank you for choosing JAMS as your dispute resolution provider. This letter will confirm that a
mediation session has been scheduled as follows:
DATE(S): July 19, 2018 at 10:00 AM for 8 hours
PLACE: JAMS
Two Embarcadero Center
Suite 1500
San Francisco, CA 94111
NEUTRAL: Hon. Ellen Sickles James (Ret.)
It is important that the representatives who have the complete settlement authority attend the
mediation session.
Please submit any briefs or other documents to the mediator at ejames@jamsadr.com and
jdienner@jamsadr.com as soon as possible but no later than 4 PM on July 18, 2018.

If monies are outstanding, a deposit request for your share of the fees will be emailed separately.
Payment is now due. To expedite the processing of your payment, you may remit it via overnight
mail to: JAMS - Attn: Lynne Hart, 18881 Von Karman Ave., #350 Irvine, CA 92612-8651, along
with a copy of the invoice. You may also bring your payment to the session on July 19th.

The last day to cancel or continue has passed. If reserved time is canceled or continued by any party,
JAMS will attempt to reschedule the neutral’s time. However, if JAMS cannot reschedule, the party
canceling or continuing the mediation is responsible for all fees associated with the reserved time.

Please contact me directly at 415-774-2626 with any questions. We look forward to seeing you
again.

Sincerely,

Jesse

Enclosures
Jesse C. Dienner
Senior Case Manager

Two Embarcadero Center
Suite 1500
San Francisco, CA 94111
P: 415-774-2626
F: 415-982-5287

JAMS was named the top ADR provider in the Bay Area for the 11th year in a row in The Recorder’s 2017 “Best
of” list.
U.S. | International | LinkedIn | Twitter
From: Lily Kaufman
To: JGrove@g3mh.com; Na"il Benjamin
Cc: agrasso@g3mh.com; Karlyn Swan; Jesse Dienner
Subject: 1081-1083-1085-1087 Mississippi Street Homeowners Association vs. Fanoiki, Olusoji - REF no. 1100090901
Date: Friday, July 13, 2018 4:04:25 PM
Attachments: James Ellen Mediation [682].pdf
Engagement Agreement w Tentative Mediation Ltr.pdf
Importance: High

Dear Counsel,

Thank you for choosing JAMS and Hon. Ellen Sickles James to mediate your case. Please see the
attached tentative confirmation notice and request to sign our JAMS engagement agreement.

In order for the mediation to commence as scheduled, please return the executed Agreement to me
at lkaufman@jamsadr.com by close of business Monday, July 13, 2018. Even if your client will be
submitting fees, we would prefer an attorney from the representative firm to be the signatory.

Once we have received all signed agreements, we will send an official confirmation packet, which
will include an invoice for the parties being billed.

Should you have any questions feel free to contact me at 415-774-2656 or Judge James’ Case
Manager, Jesse Dienner, at 415-774-2626. We look forward to working with you.

Best Regards,
Lily

Lily Kaufman
Case Coordinator

Two Embarcadero Center, Suite 1500
San Francisco, CA 94111
P: 415.774.2656
F: 415.982.5287

JAMS was named the top ADR provider in the Bay Area for the 11th year in a row in The Recorder’s 2017 “Best
of” list.
U.S. | International | LinkedIn | Twitter
EXHIBIT "D"
1 NA’IL BENJAMIN, ESQ. (STATE BAR NO. 240354)
2 ALLYSSA VILLANUEVA, ESQ. (STATE BAR NO. 312935)
BENJAMIN LAW GROUP, P.C.
3 1290 B Street, Suite 314
Hayward, CA 94541
4 Telephone: (510) 897-9967
Facsimile: (510) 439-2632
5 Email: nbenjamin@benjaminlawgroup.com
allyssa@benjaminlawgroup.com
6
Attorneys for Plaintiff
7 OLUSOJI FANOIKI

9
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
10
IN AND FOR THE COUNTY OF SAN FRANCISCO
11

12
CASE NO. CGC-18-568750
13

14 OLUSOJI FANOIKI, an individual PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION TO COMPEL
15 Plaintiff, ARBITRATION AND TO STAY ACTION

16 vs. Dept: 501
Judge: Hon. Ronald Quidachay
17 Time: 9:30am
1081-1087 MISSISSIPPI STREET Date: March 11, 2019
18 HOMEOWNERS’ ASSOCIATION, et. al.

19 Defendants.

Opposition to Defendant’s Motion to Compel Arbitration/Stay the Action Page |1
1 I. INTRODUCTION

2 Plaintiff OLUSOJI FANOIKI (“Plaintiff” or “Mr. Fanoiki”)’s Complaint includes six state law
3 claims for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) breach of
4 fiduciary duty; (4) FEHA housing discrimination; (5) discrimination in violation of the CA Unruh Civil
5 Rights Act; and (6) violation of Cal. Business and Professions Code sections 17200 et seq. Defendants
6 seek to compel arbitration of all claims in Mr. Fanoiki’s Complaint and to stay the action pending
7 arbitration.
8 Defendants’ Motion must be denied as the arbitration clause in the parties’ contract is inapplicable

9 to some, if not all, claims in the Complaint.

10 II. LEGAL STANDARDS

11 “[T]he court shall order the petitioner and the respondent to arbitrate the controversy if it determines

12 that an agreement to arbitrate the controversy exists” unless certain circumstances are found. CCP § 1281.2.

13 “A motion to compel arbitration is, in essence, a request for specific performance of a contractual

14 agreement. The trial court is therefore called upon to determine whether there is a duty to arbitrate the

15 matter; necessarily, the court must examine and construe the agreement, at least to a limited extent.”

16 Duffens v. Valenti (2008) 161 Cal. App. 4th 434, 444. Defendant bears the burden of proof to establish by a

17 preponderance of the evidence that the arbitration agreement applies to Plaintiff’s claims. Ruiz v. Moss

18 Bros. Auto Group, Inc. (2014) 232 Cal. App. 4th 836, 842 (citing Pinnacle Museum Tower Assn. v. Pinnacle

19 Market Development (US), LLC (2012) 55 Cal.4th 223, 236).

20 However, a court must not compel the parties to arbitration if “[a] party to the arbitration agreement

21 is also a party to a pending court action or special proceeding with a third party, arising out of the same

22 transaction or series of related transactions and there is a possibility of conflicting rulings on a common

23 issue of law or fact. CCP § 1281.2(c). Additionally, “[i]f the court determines that there are other issues

24 between the petitioner and the respondent which are not subject to arbitration and which are the subject of a

25 pending action or special proceeding between the petitioner and the respondent and that a determination of

26 such issues may make the arbitration unnecessary, the court may delay its order to arbitrate until the

27 determination of such other issues or until such earlier time as the court specifies. Id.

Opposition to Defendant’s Motion to Compel Arbitration/Stay the Action Page |2
1 Finally, “[a] party to an arbitration agreement may file in the court in the county in which an

2 arbitration proceeding is pending, or if an arbitration proceeding has not commenced, in any proper court,

3 an application for a provisional remedy in connection with an arbitrable controversy.” CCP § 1281.8(b).

4 III. ARGUMENTS IN OPPOSITION

5 A. Plaintiff’s Complaint is Not Subject to Mandatory Arbitration.

6 Defendants contend that Plaintiff’s Complaint is barred as he allegedly failed to comply with a

7 mandatory arbitration requirement. 1 However, Mr. Fanoiki is not required to arbitrate the claims included

8 in his Complaint.

9 The Davis-Stirling Act (Cal. Civ. Code sec. 4000 et seq.) gives authority to establish an HOA and to

10 create the CC&Rs (Covenants, Conditions, and Restrictions). Thus, Defendant HOA’s CC&Rs are legally

11 binding to the extent that its provisions do not conflict with state or federal law.

12 Defendants argue that CC&R section 11.4(c) requires arbitration of all claims in Plaintiff’s

13 Complaint. Mot. at 6:22-27. Here, Defendant ignores other relevant provisions of the CC&R necessary to

14 interpreting whether the arbitration clause applies to Mr. Fanoiki’s claims. Other pertinent contract

15 provisions include:

16 CC&R section 3.3 ENFORCEMENT: “The Association shall exercise prudent business
judgement in determining whether, when, and how to enforce the Governing Documents.
17 The Association is authorized to impose fines, suspend voting rights, and impose other
disciplinary action for violation of the Governing Documents to the fullest extent
18 permitted by California law. . .a disciplinary action shall not be effective against an
Owner unless the Association fulfills the procedural requirements of this Section. The
19 Association may not impair an Owner’s right to use and enjoy his/her Unit as part of a
disciplinary action. Each Owner shall have a right of action against another Owner or
20 the Association for failure to comply with the Governing Documents or with a decision
of the Association.
21
CC&R 5.5(E) OWNER RIGHTS AND REMEDIES RE: DELINQUENT
22 ASSESSMENTS: “The Owner may dispute the debt by submitting to the Association a
written request for dispute resolution pursuant to section 11.4. The Association shall
23 respond in writing to the Owner within fifteen (15) days of the date of the postmark of
the explanation, if the explanation is mailed within fifteen (15) days of the postmark of
24 the Owner Notice of Delinquency. Under certain limited circumstances as described in
Civil Code section 1367.1, an Owner may use the alternative dispute resolution process
25 mentioned in that section to resolve a dispute regarding Assessments; however binding
26

27 1
Defendants raised this argument in their Opposition to Plaintiff’s Motion for Preliminary Injunction and Plaintiff
responded in his Reply briefing. See docket.
28

Opposition to Defendant’s Motion to Compel Arbitration/Stay the Action Page |3
arbitration shall not be available to an Owner if the Association intends to initiate
1 judicial foreclosure.”
2 Declaration of Allyssa Villanueva in Support of Opposition (“Villanueva Declaration”) ¶ 2, Ex. A.

3 The CC&Rs then detail three levels of dispute resolution: internal; mediation; and arbitration. CC&4

4 section 11.4. Id. Subsection (A) outlines “internal procedure” allows either party “to request the other party

5 to meet and confer in an effort to resolve the dispute.” Id. At this initial dispute stage, the CC&Rs

6 specifically exempt disputes “related to Owner discipline subject to the procedural requirements of

7 Section 3.3, alteration approval subject to the procedural requirements of Section 6.5, or alteration non-

8 compliance procedural requirements of section 6.6.” Id. Subsection (B) outlines “mediation” which is “a

9 voluntary informal attempt to resolve a dispute” and requires that “[a]ll parties agree to attempt in good faith

10 to resolve any dispute related to this Declaration or to the Property through mediation.” Id.

11 Subsection (C) then outlines the third level of arbitration: “Except as otherwise provided in this

12 Declaration or required by law, any dispute related to the Governing Documents shall be resolved through

13 mandatory binding arbitration by the American Arbitration Association or other private arbitration services

14 or individual acceptable to all parties.” Id. “Governing documents” means the CC&R Declaration. Id. at

15 1.9.

16 Thus, a full reading of the CC&R evidences that mandatory arbitration does not apply to all disputes

17 “related to the Governing Documents.” See Mot. at 6:23-24. Instead, it is best read and interpreted to only

18 cover those disputes not specifically provided for in the contract.

19 As detailed above, the CC&Rs mandate specific non-arbitration dispute procedures related to the

20 Association’s enforcement of the Governing Documents, including discipline of Mr. Fanoiki (CC&Rs 3.3);

21 enforcement and assessments related to Mr. Fanoiki’s alterations (CC&R 6.6); and Mr. Fanoiki’s delinquent

22 assessments due to ongoing disputes (CC&R 5.5). Mr. Fanoiki’s claims are premised on such disputes

23 which are specifically exempted from mandatory arbitration. Even Defendants concede that “[a]ny and all

24 of Defendants’ alleged conduct was taken in connection with or in furtherance of its enforcement

25 obligations under Article 3.3.” Mot. at 7:5-7 (emphasis added). 0

26 Additionally, the CC&Rs specifically exempt “special disputes” from the mandatory arbitration

27 provision:

Opposition to Defendant’s Motion to Compel Arbitration/Stay the Action Page |4
“The following matters are not subject to the mandatory binding arbitration provisions of
1 this Declaration; however, litigation relating to these matters shall be subject to the
alternative dispute resolution requirements of Civil Code Section 1395.510 et seq. as
2 applicable: (1) unlawful detainer; (2) except as specifically provided in Civil Code
section 1367.1, enforcement of an obligation to pay an assessment; (3) partition pursuant
3 to Civil Code § 1359; (4) bodily injury or wrongful death; and (5) recordation of a notice
of pending action, or an order of attachment, receivership, injunction, or other provisional
4 remedy which may provide interim protection during the pendency of an arbitration
proceeding.” Id. at 11.4(D).
5
For such exempted disputes, the Davis-Sterling Act (formerly Civil Code Section 1395.510 et seq.)
6
governs the dispute procedure. Id. at §11.4(D); Cal. Civil Code § 5925 (defining “alternative dispute
7
resolution”). The Davis-Sterling Act requires only that a party attempt some form of alternative dispute
8
resolution prior to bringing an action in the superior court. Cal. Civil Code § 5930. The Act defines
9
“alternative dispute” resolution as: “mediation, arbitration, conciliation, or other nonjudicial procedure that
10
involves a neutral party in the decision-making process. The form of alternative dispute resolution chosen
11
pursuant to this article may be binding or nonbinding, with the voluntary consent of the parties.” Cal. Civil
12
Code § 5925. Thus, the Civil Code does not mandate arbitration for any of Mr. Fanoiki’s claims.
13
Finally, Plaintiff’s discrimination claims are brought pursuant to the CA Unruh Civil Rights Act and
14
the Fair Employment and Housing Act (“FEHA”). Arbitration agreements that impact statutory rights are
15
subject to stricter scrutiny and require that the agreement: (1) provides for neutral arbitrators; (2) does not
16
limit statutorily imposed remedies including punitive damages; (3) allows for adequate discovery; (4) will
17
include a written arbitration award for judicial review; and (5) arbitration cost and fees cannot exceed those
18
that would have been incurred in civil action. Armendariz v. Foundation Health Psychcare Services, Inc.
19
(2000) 24 Cal. 4th 83, 99-113 (determining whether mandatory arbitration applied to a FEHA claim).
20
The arbitration clause states only that: “Arbitrators shall have discretion to allow parties reasonable
21
and necessary discovery in accordance with Code of Civil Procedure 1283.05, but shall exercise that
22
discretion mindful of the need to promptly and inexpensively resolve the dispute.” CC&Rs at 11.4(C).
23
Defendants have not and cannot establish that the arbitration clause meets all requirements to subject Mr.
24
Fanoiki’s statutory claims to mandatory arbitration. Defendant’s cannot establish that disparate and
25
discriminatory conduct is a part of the Governing Documents or any types of disputes enumerated therein.
26
Likewise, Plaintiff’s UCL claim is predicated, in part, on his claims for discrimination. Thus, some, if not
27
all, claims between the parties cannot be subject to mandatory arbitration.
28

Opposition to Defendant’s Motion to Compel Arbitration/Stay the Action Page |5
1 Prior to filing suit, the parties met and conferred from approximately March 2018 to July 2018.

2 Villanueva Decl. ¶ 3, Ex. B. The meet and confer efforts were unsuccessful in reaching resolution so the

3 parties proceeded to formal mediation. The parties completed a full day of mediation with JAMS mediator

4 Hon. Ellen Sickles James on July 19, 2018. Villanueva Decl. ¶ 4, Ex. C. When mediation was

5 unsuccessful, Plaintiff filed suit. Thus, Mr. Fanoiki completed all exhaustion requirements under both the

6 Davis-Sterling Act and the CC&Rs prior to bringing his suit including meet and confer and formal

7 mediation. 2

8 Plaintiff’s Complaint is not subject to mandatory arbitration. Thus, Defendant’s Motion must be

9 denied in its entirety.

10 B. Even if the Court Finds that Some of Plaintiff’s Claims are Subject to Mandatory Arbitration,

11 Defendant’s Motion Must be Denied.

12 Defendant argues that “all claims raised by Plaintiff in this lawsuit relate to Defendants alleged

13 violation of the Governing Documents.” Mot. at 6:25-26. Assuming, arguendo, that some of Plaintiff’s

14 claims are subject to mandatory arbitration, the statute allows the court to delay an order to arbitrate when

15 other claims are not so subject.

16 “[A] party to the arbitration agreement is also a party to a pending court action or special proceeding

17 with a third party, arising out of the same transaction or series of related transactions and there is a

18 possibility of conflicting rulings on a common issue of law or fact. CCP § 1281.2(c). Additionally, “[i]f the

19 court determines that there are other issues between the petitioner and the respondent which are not subject

20 to arbitration and which are the subject of a pending action or special proceeding between the petitioner and

21 the respondent and that a determination of such issues may make the arbitration unnecessary, the court may

22 delay its order to arbitrate until the determination of such other issues or until such earlier time as the court

23 specifies. Id.

24 Here, Plaintiff’s action is already pending before this Court and involves Defendants as named

25 parties. Plaintiff’s Complaint is premised on conduct by Defendants pursuant to the CC&Rs, in violation of

27 2
Plaintiff also alleges that Defendants obstructed and/or delayed his attempts to use the dispute resolution processes
afforded to him under the CC&Rs. See Complaint ¶¶ 24, 25, 26, 28, 29, 31, 33, 34, 35, 36, and 37.
28

Opposition to Defendant’s Motion to Compel Arbitration/Stay the Action Page |6
1 the CC&Rs, and conduct that is not covered at all by the CC&Rs. Plaintiff complaints that Defendants

2 violated his contractual rights and their contractual obligations to him.

3 However, Plaintiff’s Complaint also includes race discrimination claims and violation of California’

4 Unfair Competition law (“UCL”) for unfair and unlawful business conduct. Discrimination based on race is

5 certainly not authorized not regulated anywhere in the CC&Rs. Plaintiff’s discrimination claims are

6 brought pursuant to the CA Unruh Civil Rights Act and the Fair Employment and Housing Act (“FEHA”).

7 As discussed supra, Section III.A, Defendants have not and cannot establish that the arbitration

8 clause meets all requirements to subject Mr. Fanoiki’s statutory claims to mandatory arbitration.

9 Defendant’s cannot establish that disparate and discriminatory conduct is a part of the Governing

10 Documents or any types of disputes enumerated therein. Likewise, Plaintiff’s UCL claim is predicated, in

11 part, on his claims for discrimination. Thus, some claims between the parties are not subject to mandatory

12 arbitration. Arbitration on some claims may lead to conflicting determinations on common issues of fact

13 supporting all claims in Plaintiff’s Complaint. A judicial determination of the claims not subject to

14 arbitration will likely make arbitration unnecessary.

15 The Court should deny Defendant’s Motion in its entirety. If it finds that some of Plaintiff’s claims

16 are subject to mandatory arbitration, the Court should delay the order to arbitration under the exceptions

17 announced in CCP section 1281.2(c).

18 C. Even if Plaintiff’s Complaint is Subject to Arbitration, Defendant’s Cannot Stay His Motion

19 for Preliminary Injunction.

20 Assuming, arguendo, that Plaintiff’s entire Complaint is subject to arbitration, “[a] party to an

21 arbitration agreement may file in the court in the county in which an arbitration proceeding is pending, or if

22 an arbitration proceeding has not commenced, in any proper court, an application for a provisional remedy

23 in connection with an arbitrable controversy.” CCP § 1281.8(b). For purposes of the statute, a “provisional

24 remedy” includes a preliminary injunction and temporary restraining order. Id. at subd. (a). “It is not

25 incompatible with an arbitration agreement for a party to request from a superior court, before or during

26 arbitral proceedings, an interim measure of protection, or for the court to grant such a measure.” CCP §

27 1297.91; see, e.g., Baltazar v. Forever 21, Inc., 62 Cal. 4th 1237, 1247 (2016) (section 1281.8(b) “expressly

Opposition to Defendant’s Motion to Compel Arbitration/Stay the Action Page |7
1 permits parties to an arbitration to seek preliminary injunctive relief during the pendency of the

2 arbitration”).

3 In addition to the statutory authority, the CC&Rs specifically exempt from the mandatory arbitration

4 provision: “recordation of a notice of pending action, or an order of attachment, receivership, injunction, or

5 other provisional remedy which may provide interim protection during the pendency of an arbitration

6 proceeding.” CC&Rs at 11.4(D).

7 Here, Plaintiff applied for a preliminary injunction to enjoin Defendants from foreclosing on his

8 property. See Plaintiff’s Motion for Preliminary Injunction. Defendants argued that alleged mandatory

9 arbitration was a bar to Plaintiff’s Motion. 3 See Opposition to Plaintiff’s Motion for Preliminary Injunction.

10 However, on February 13, 2019, this Court granted Plaintiff’s Motion and issued a preliminary injunction.

11 See Order on Plaintiff’s Motion for Preliminary Injunction. Thus, even if Defendant’s Motion to compel

12 arbitration is granted, the Court’s grant of preliminary injunctive relief to Plaintiff will remain in effect.

13 III. CONCLUSION

14 Based on the foregoing, the Court should deny Defendants’ Motion in its entirety.

15
BENJAMIN LAW GROUP, P.C.
16 DATED: February 26, 2019
17

19 By:
ALLYSSA VILLANUEVA, ESQ.
20 Attorneys for Plaintiff
OLUSOJI FANOIKI
21

27
3
The Court also denied Defendants’ ex parte application seeking an order on February 13, 2019.
28

Opposition to Defendant’s Motion to Compel Arbitration/Stay the Action Page |8
63032555
Mar 06 2019
10:42AM

Michael A. Slater, Esq. March 6, 2019

Case Info

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Samuel K. Feng Track Judge’s New Case

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Document Filed Date

September 25, 2019

Case Filing Date

August 08, 2018

County

Parties

1081-1087 MISSISSIPPI STREET Defendant
1081-1087 MISSISSIPPI STREET HOMEOWNERS' Defendant
BENJAMIN, NA'IL Attorney for the Plaintiff
BOYKIN, JEFFREY P. Attorney for the Defendant
DOES 1 TO 10 INCLUSIVE Defendant
FANOIKI, OLUSOJI Plaintiff
GRIFFIN, JOHN T. Attorney for the Defendant
MIYAKE, STEVEN SHUNZO Attorney for the Plaintiff
REED, BRIAN Defendant
SWERDLOW, ALAN EDWARD Attorney for the Defendant
Allyssa Villanueva Attorneys for Plaintiffs
Christopher Whang Attorneys for Defendants
Edward Reid Attorneys for Defendants
Ekaterina Golovanova Attorneys for Defendants
Michael Slater Attorneys for Defendants
Artes Grove Attorney
Patricia Rosenberg Attorney
Stephanie Stringer Attorneys for Defendants
Barry Vrevich Attorney

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Motion-Secondary: OLUSOJI FANOIKI VS. 1081-1087 MISSISSIPPI STREET ET AL

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