Dr. Farzan Alamirad D.D.S., Inc. v. Sherbank Azizi etc. CA2/4 ( 2020 )

Filed 11/19/20 Dr. Farzan Alamirad D.D.S., Inc. v. Sherbank Azizi etc. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
DR. FARZAN ALAMIRAD B296752
D.D.S., INC.,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
BS174763)
v.
SHERBANK AZIZI DENTAL
CORPORATION,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Patricia Nieto, Judge. Reversed and remanded.
Law Offices of Geoffrey G. Melkonian, Geoffrey G.
Melkonian for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
INTRODUCTION
Farzan Alamirad filed his initial complaint against his
former employer, Sherbank Azizi Dental Corporation d/b/a Green
Dental & Orthodontics (Sherbank Azizi), erroneously sued as
Green Dental & Orthodontics, Inc., in September 2015 (the “first
action”). Sherbank Azizi answered the complaint and filed a
cross-complaint for fraud and breach of contract. The parties
later agreed to arbitrate their claims. Alamirad never commenced
arbitration, however. On November 22, 2017, Alamirad
voluntarily dismissed his claims without prejudice, and Sherbank
Azizi dismissed its cross-complaint without prejudice.
On December 17, 2018, Alamirad re-filed his claims, this
time styling the action as a petition to compel arbitration on
behalf of his company, Dr. Farazan Alamirad D.D.S., Inc. The
trial court denied the petition on the sole ground that Alamirad
was barred from filing a petition alleging the same claims as the
first action. The trial court reasoned that, despite Alamirad’s
contention that the first action was dismissed without prejudice,
a party may not unilaterally dismiss the entire action without
prejudice once a cross-complaint has been filed under Code of
Civil Procedure section 581, subdivision (i).1
Unfortunately, however, the parties failed to provide the
trial court with all of the relevant information. They neglected to
direct the trial court to a November 22, 2017 minute order (the
“Minute Order”) in the first action stating the action was
dismissed by both parties without prejudice: “Defendant
dismisses cross-complaint without prejudice. . . . Plaintiff’s claims
are dismissed without prejudice.” Azizi claims the Minute Order
was misplaced and not in the court file at the time of the hearing
on the petition. The Minute Order apparently has since been
found, and appears in the record on appeal. We therefore reverse
1 All further undesignated statutory references are to the
Code of Civil Procedure.
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the trial court’s order denying the petition to compel arbitration,
and remand the matter to the trial court to reconsider the
petition on the merits in light of the Minute Order.
DISCUSSION 2
As discussed above, Alamirad filed a petition to compel
arbitration on behalf of his company, alleging the same claims he
brought (in his individual capacity) in the first action. In
opposition, Sherbank Azizi’s counsel filed a declaration stating
“Petitioner has filed a Petition to Compel Arbitration of a matter
that has already been dismissed by the Court based on
Petitioner’s previous failure to proceed with arbitration.”
Alamirad filed a reply, arguing “the [first action] was voluntarily
dismissed by [Alamirad] . . . the matter was voluntarily dismissed
without prejudice.”
Based on the parties’ representations, the trial court denied
the petition “pursuant to section 581, subdivision (i).”3 That
provision precludes a plaintiff from unilaterally dismissing an
entire action without prejudice once a cross-complaint has been
filed, as was the case here. (§ 581, subd. (i).) Neither party,
however, directed the court’s attention to the Minute Order
entered in the first action, which states the action was dismissed
2 Where, as here, there is no respondent’s brief, we “decide
the appeal on the record, the opening brief, and any oral
argument by the appellant.” (Cal. Rules of Court, rule
8.220(a)(2).)
3 The January 30, 2019 minute order of the hearing on the
petition to compel arbitration states the court’s finding that
“there is no dispute that the arbitration agreement is enforceable
between these parties.” The court went on to analyze whether
Alamirad waived his right to arbitrate his claims, concluding the
“Court is hesitant to find waiver is appropriate in this case.
However, the Court will hear argument from counsel at the
hearing and issue a final ruling.” After argument, the court
denied the petition solely “pursuant to CCP 581(i).”
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by both parties without prejudice. (See § 581, subd. (c) [a plaintiff
or a cross-complainant may dismiss his or her complaint or cross-
complaint without prejudice prior to the commencement of trial].)
Because the Minute Order indicates both parties voluntarily
dismissed their claims, section 581, subdivision (i) does not apply.
DISPOSITION
The order denying appellant’s petition to compel
arbitration is reversed and the case is remanded to the trial court
to reconsider the petition on the merits. Appellant is awarded its
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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