Atilano v. Bryon

• Court: Superior Court of Guam
• Decided: March 13, 2012
• Docket: CV1224-11
• Status: Unknown

Opinion

Ter torial Law Library P! il: 12 2

3 IN THE SUPERIOR COURT OF GUAM 4

5 ) 6 RAFEAL ATILANO and MARIA ) CIVIL CASE NO. CVI224-II LOURDES ATILANO, ) 7 ) 8 Plaintiffs, ) DECISION AND ORDER ON ) DEFENDANTS' MOTION TO DISMISS and 9 PLAINTIFFS' MOTION TO STAY vs. ) PROCEEDINGS AND APPOINT 10 JULIA H. BRYSON, SEVENTH DAY ~ ARBITRATORS II ADVENTIST CLINIC, and ZURICH ) AMERICAN INSURANCE COMPANY, ) 12 ) 13 Defendants. )

14 1-----------------------------) INTRODUCTION 15 The above matters came before the Honorable Alberto C. Lamorena, III on November 21 16 2011. Attorney Robert L. Keogh represented Plaintiffs, Rafael Atilano and Maria Lourde 17

Atilano. Attorney Mitchell F. Thompson represented the Defendants Julie H. Bryson, M.D. ("Dr 18 Bryson"), The General Conference Corporation of the Seventh Day Adventist Church, dba Gu 19 SDA Clinic ("SDA Clinic"), and Zurich American Insurance Company ("Zurich").} The partie 20 submitted the matters on the briefs. Having considered the parties' arguments and the applicabl 21

22 law the Court now issues its Decision and Order.

26 } Defendants assert that the caption in this matter contains improper names for two of th defendants: Julia H. Bryson and Seventh Day Adventist Clinic, as provided in the caption are 27 respectively, Julie H. Bryson and The General Conference Corporation of the Seventh Da Adventist Church, dba Guam SDA Clinic. For purposes of clarity and out of respect to th 28 parties, this Court notes the discrepancy and, when referencing the defendants individually, wil refer to them as Dr. Bryson and SDA Clinic.

-1- FACTUAL HISTORY 2 In this medical malpractice action Plaintiffs seek damages for alleged negligent treatmen 3 and care by Dr. Bryson and SDA Clinic. In addition, Plaintiffs assert a direct action claim agains 4 Zurich, a company providing liability insurance to both Dr. Bryson and SDA Clinic. Betwee 5 February 24, 2010, and March 9, 2010, Plaintiff Rafael Atilano was a patient at SDA Clini 6 under the care of Dr. Bryson. Plaintiffs allege that while Mr. Atilano was under Dr. Bryson' 7 care, Dr. Bryson failed to properly diagnose Mr. Atilano's malady, failed to refer him to a prope 8 specialist, failed to order appropriate imaging studies, failed to provide appropriate medica 9 advice, and failed to properly advise Mr. Atilano of his treatment options. Following treatmen 10 by Dr. Bryson, Mr. Atilano apparently suffered permanent spinal nerve damage. Plaintiffs clai 11 that Mr. Atilano's injury was caused by the alleged substandard treatment provided by Dr 12 Bryson and SDA Clinic. 13 On February 11, 2011, Plaintiffs served a petition and demand for arbitration upo 14 Respondents, Dr. Bryson and SDA Clinic, pursuant to title 10, chapter 10 of the Guam Code 15 otherwise referred to as Guam's Medical Malpractice Mandatory Arbitration Act ("MMMAA") 16 10 G.C.A. § 10100 et. seq. On March 4,2011, Plaintiffs filed an amended petition and deman 17 for arbitration in which Plaintiffs added Defendant Zurich as a respondent. On August 8, 2011 18 Plaintiffs filed their Complaint in Superior Court naming Dr. Bryson, SDA Clinic, and Zurich 19 defendants. Thereafter, Plaintiffs filed a motion with this Court to appoint an arbitrator and sta 20 the court proceedings. Zurich then filed a motion to dismiss the Complaint. In the followin 21 discussion, this Court addresses each motion in tum, beginning with the motion to dismiss 22 followed by discussion of the motion for appointment of arbitrators, and ending with the motio 23 to stay the court action. 24 DISCUSSION 25 I. The Motion to Dismiss 26 Rule 8(a) of the Guam Rules of Civil Procedure provides that a pleading setting forth 27 claim for relief must contain "a short and plain statement of the of the claim showing that th 28 pleader is entitled to relief ...." Under Rule 12(b)(6), dismissal is appropriate where th

-2- Complaint fails to state a claim upon which relief can be granted. 2 Dismissal of the complaint 0 2 any claim therein "can be based on the lack of a cognizable legal theory or the absence 0 3 sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 4 F.2d 696, 699 (9th cir. 1990); see also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d530 5 534 (9th Cir. 1984). Although the complaint need not contain detailed factual allegations, "[t] 6 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true 7 to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct 8 1937,1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Where 9 court grants a motion to dismiss, "leave to amend should be granted 'unless the court determine 10 that the allegation of other facts consistent with the challenged pleading could not possibly cur 11 the deficiency. '" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.1992) (quotin 12 Schreiber Distrib. Co. v. ServWell Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986)). 13 Under Guam law a plaintiff who wishes to file a claim for injuries based on allege 14 medical malpractice must commence the claim "with[in] [sic] one (1) year from the date whe 15 the injury is first discovered; provided, that such action shall be commenced within three (3 16 years from the date of treatment, omission or operation upon which the action is based." 17 G.C.A. § 11308. Plaintiffs' Complaint generally alleges that Mr. Atilano first underwen 18 treatment by Dr. Bryson and SDA Clinic on February 24, 2010 and that his treatment ended 0 19 March 9, 2010. The Complaint states that the earliest possible date of discovery of Mr. Atilano' 20 injury was February 24, 2010; however, the Complaint does not provide a date on which th 21 injury was actually discovered. 22 Defendant Zurich argues that dismissal is appropriate in this case because Plaintiffs faile 23 to plead any facts in their Complaint to justify the tolling of the one-year statute of limitation 24

25 2 Under Rule 12(b)(6), if "matters outside the pleadings are presented to and not excluded by ih

26 court, the motion shall be treated as one for summary judgment and disposed of as provided i Rule 56 and all parties shall be given reasonable opportunity to present all material mad 27 pertinent to such motion by Rule 56." GRCP 12(b)(6). In the present case, though the partie 28 have presented some evidence outside the pleadings, this Court rejects consideration of an matters outside the pleading and decides the present motion based solely on the sufficiency 0 the pleadings and the law applicable thereto.

-3- and that the Complaint - filed nearly one and a half years after the date treatment - is time 2 barred on its face. 3 Plaintiffs offer three arguments supporting their contention that the Complaint is timely 4 First, Plaintiffs suggest that the statute of limitations does not begin to run until the date th 5 Plaintiffs discovered the injury and that this specific date of discovery is a question of fact· 6 therefore, the Complaint cannot be found to be untimely on a motion to dismiss. Second 7 Plaintiffs contend that the timely filing of their demand for arbitration on February 11, 2011 8 tolled the statute of limitations for filing of the complaint. Third, Plaintiffs suggest that the fil 9 date for the Complaint relates back to the date on which the demand for arbitration was filed 10 This Court is not persuaded by Plaintiffs' arguments and finds that dismissal of the Complaint i 11 appropriate. 12 a. The Complaint is Untimely On its Face 13 The first issue before this Court is whether Plaintiffs' Complaint, which was filed mor 14 than one year after the last date of treatment, is barred by the one-year limitations period unde 15 title 7, section 11308 of the Guam Code. 16 A statute of limitations bar may be resolved on a Rule 12(b)(6) motion. See Amsden v 17 Yarnon, 1999 Guam 14; Dummar v. Lummis,543 F.3d 614, 619 (lOth Cir.2008); Aldrich v 18 McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (lOth Cir.1980). Where a plaintiff's complaint 19 on its face, would be time barred without the benefit of tolling or some other justification fo 20 delay the plaintiff must affirmatively plead facts that support tolling of the limitations period 21 See Amsden v. Yarnon, 1999 Guarn 14,,13-15; Bourland v. Salas, 1986 WL 68918 (D. Gu 22 App. Div. Oct. 24, 1986); Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 808, 110 P.3 23 914, 920-21 (2005); McKelvey v. Boeing North American, Inc., 74 Cal.AppAth 151, 160, 8 24 Cal.Rptr.2d 645 (1999); De Vault v. Logan, 223 Cal.App.2d 802, 809, 36 Cal.Rptr. 145, 14 25 (1963). 26 In Amsden v. Yarnon, 1999 Guam 14, Amsden filed a complaint two years and five day 27 after the date of the vehicular accident giving rise to Amsden's claim, despite the fact that th 28 claim was subject to a two-year statute of limitations. The complaint failed to allege any fact

-4- justifying the delayed filing, such as an allegation and details suggesting that the limitation 2 period had been tolled. Nevertheless, faced with a motion for summary judgment, Amsde 3 argued that the limitations period had been tolled by a Guam statute allowing tolling when 4 defendant is off island at the time the action accrues. 1995 Guam 14"10-11; 7 G.C.A. § 11403 5 The trial court rejected the argument and entered summary judgment against Amsden based i 6 part on the fact that Amsden's complaint failed to include any tolling-related facts. On appeal 7 the Supreme Court of Guam affirmed the lower court's decision, holding that a plaintiff mus 8 plead specific facts showing that the relevant tolling statute is applicable. Id. " 1, 15-16. I 9 reaching this determination the Court relied on Ponderosa Homes Inc. v. City of Ramon, i 10 which the California Supreme Court held that "[w]hen a complaint shows on its face or on th 11 basis of judicially noticeable facts that the cause of action is barred by the applicable statute 0 12 limitations, the plaintiff must plead facts which show an excuse, tolling, or for [sic] some othe 13 basis for avoiding the statutory bar." Amsden, 1999 Guam 14, 12 (quoting City of Ramon, 23 14 Cal.AppA th 1761, 1768,29 Cal. Rptr. 2d 26,29 (1994)). 15 In Fox v. Ethicon Endo-Surgery, Inc., 27 Cal.Rptr.3d 661, 35 CalAth 797 (2005), th 16 California Supreme Court again affirmed the premise that a plaintiff must plead specific tollin 17 facts within the complaint. In Fox, the plaintiff underwent gastric bypass surgery and late 18 suffered injuries due to a perforation of a stapled enclosure at the plaintiff's small intestine. Th 19 plaintiff filed a complaint against the doctor within the prescribed limitations period, but late 20 discovered that a stapler used in the procedure may have been defective. Plaintiff amended th 21 complaint to name the manufacturer as a defendant. Although the amendment was filed afte 22 expiration of the one-year products liability statute, the amended complaint alleged that th 23 plaintiff could not have, with reasonable diligence, made an earlier discovery that the stapler wa 24 a cause of her injury. Fox, 27 Cal.Rptr.3d at 665, 35 Cal.4th 805. The California Supreme Cou 25 found this allegation to be insufficient to withstand demurrer and held that the complaint mus 26 contain specific facts supporting any claim that the plaintiff could not or should not hav 27 discovered earlier that the stapler was a cause of the injury. Fox, 27 Cal.Rptr.3d at 811, 3 28 Cal.4th at 671.

-5- In the present case, Plaintiffs acknowledge that the Complaint "does not state or establis 2 'on its face' when discovery of the malpractice occurred." (PI. 's Opp. to Mot. to Dism., 13) Bu 3 Plaintiffs argue that discovery is a question of fact that should not be decided on a motion t 4 dismiss. Plaintiff's argument does not comport with the holdings in the above cases whic 5 clearly illustrate that when a plaintiff relies on tolling facts to justifY the submission of 6 complaint that does not appear on its face to have been filed within the prescribed statutory tim 7 limits, the plaintiff must plead those specific facts that support the complaint's timeliness. Th 8 Complaint here simply states that the negligent treatment occurred sometime between Febru 9 24, 2010, and March 9, 2010, and there is no suggestion that Mr. Atilano's discovery of hi 10 injury was delayed or that the filing of the petition and demand for arbitration tolled th 11 limitations period. Plaintiffs' Complaint contains only the barest of facts and these facts fail t 12 support Plaintiffs' contentions here as to tolling of the statute of limitations. Therefore, th 13 Complaint, filed nearly one year and five months after the last date of the alleged negligen 14 treatment, is time barred on its face and may be properly dismissed against all defendants. 3 15

16 b. A Demandfor Arbitration Under the MMMAA Does Not Toll the Statute of Limitations for Filing an Action in Superior Court 17 Plaintiffs also argue that the filing of the petition and demand for arbitration within th 18 statute of limitations period for a medical malpractice action tolled the statute of limitations wit 19 respect to the filing of their Superior Court action. Plaintiffs cite two cases in support of thei 20 argument, neither of which this Court fmds persuasive. In Luka v. Tri-Coun 21 Transportation District of Oregon, 244 Or. App. 565,261 P.3d 44, the Oregon Court of Appeal 22 did, as Plaintiffs assert, recognize that in Oregon the statute of limitations is tolled on 23 uninsured motorist claim when the claimant formally institutes arbitration proceedings. 244 Or 24

26 3 A court may, sua sponte, dismiss an action pursuant to Rule 12(b)(6), provided that th plaintiffs are given an opportunity to file a written opposition. Wong v. Bell, 642 F.2d 359, 361 27 62 (9th Cir. 1981). Here, Plaintiffs filed a thorough written opposition to Zurich's motion i 28 which Zurich argued that the Complaint is time-barred on its face. Having found the Complain barred by the statute of limitations, this Court is convinced that dismissal is appropriate as to al defendants, despite the fact that only one defendant has moved for dismissal.

-6- App. at 567, 261 P.3d at 45. However, the court needed to look no further than Oregon' 2 uninsured motorist law, which expressly provided for tolling under the circumstances presente 3 in that case. Id.; see also OR. REv. STAT. § 742.504(12)(a) (West, Westlaw through 2011 Reg 4 Session). In the second case cited by Plaintiffs, TroeHer v. Klein, 82 A.D.3d 513,918 N.y'S.2 5 436 (N.Y. Sup. Ct. App. Div. 2011), the New York Supreme Court Appellate Divisio 6 acknowledged that arbitration may toll a claim, but like in Luka, the court's acknowledgemen 7 was based on an applicable statutory provision that expressly allowed for tolling. See N.Y 8 c.P.L.R. § 204 (McKinney). In contrast to Plaintiffs' cited cases, Guam's law governin 9 arbitration of medical malpractice claims contains no explicit tolling provision. Had th 10 legislature intended to allow tolling of claims under the MMMAA it could have included 11 tolling provision as it did in Guam's chapter governing mediation. See 7 G.C.A. §43107 (tollin 12 all applicable limitation periods upon commencement of mediation proceedings). 13 This court finds far more persuasive the principle adopted in a number of jurisdiction 14 whereby the statute of limitations for the filing of a complaint is generally not tolled by filing 15 demand for arbitration. See Grossman v. Garratt & Evans, P.C., 992 Fold 1216 (6th Cir. 1993)' 16 United States ex reL Wrecking Corp. of Am. v. Edward R. Marden Corp., 406 F.2d 525,526 (1s 17 Cir. 1969); Shafnacker v. Raymond James & Associates, Inc., 425 Mass. 724 (1997); Nowlin v 18 Gen. TeL Co., 310 S.C. 183, 186,426 S.E.2d 114, 116 (Ct. App. 1992) affd, 314 S.C. 352,44 19 S.E.2d 508 (1994). In Shafnacker, the Massachusetts Supreme Court held that the statute 0 20 limitations on a plaintiff's superior court action is not tolled during the pendency of 21 arbitration proceeding. 425 Mass. at 728. The Massachusetts court, agreeing with the Firs 22 Circuit, found that the proper procedure for a litigant to avoid a statute of limitations bar "is t 23 file a complaint in the Superior Court within the time allowed by the statue of limitations an 24 have that action stayed pending the result of the arbitration." Id. at 729; accord Edward R 25 Marden Corp., 406 F.2d at 526 (stating that the traditional means of avoiding a statute 0 26 limitations bar in court action is to file a lawsuit and stay the proceedings pending the results 0 27 arbitration); Nowlin, 310 S.C. at186, 426 S.E.2d at 116 (where contractual arbitration provisio 28

-7- did not preclude simultaneous filing of court action with arbitration demand, statute 2 limitations on complaint filed in state court was not tolled during pendency of arbitration). 3 The recognized procedure of filing a timely action with the trial court and then requestin 4 a stay of those proceedings appears to conform to the intent of the Guam legislature when i 5 enacted the MMMAA. The MMMAA specifically allows a party to file an action in the Superio 6 Court for any issue referable to arbitration under that act, provided that "upon application of on 7 of the parties [the court] stay all proceedings in the action until such arbitration has been had i 8 accordance with the terms [of the MMMAA]." 10 G.C.A. § 10114. Given the MMMAA' 9 provision allowing for a parallel lawsuit to be filed in Superior Court as well as the absence 0 10 any statutory provision specifically providing for tolling of the limitations period durin 11 arbitration, this Court rejects Plaintiffs' argument and finds that their demand for arbitratio 12 4 under the MMMAA did not toll the statute of limitations on their Superior Court claims. 13 Having determined that the arbitration demand did not toll the limitations for the filing 0 14 the Complaint in the Superior Court, this Court need not address Plaintiffs' argument that unde 15 Rule 15(c) of the Guam Rules of Civil Procedure, the naming of Zurich in Plaintiffs' Complain 16 somehow relates back to filing of the demand for arbitration. 17 As it may be possible for Plaintiffs to plead facts establishing delayed discovery of Mr 18 Atilano's injuries, thereby placing their claims within the prescribed time limitation, this Co 19 dismisses the Complaint without prejudice and grants Plaintiff leave to amend the Complaint, i 20 they so choose. 21 II. The Motion for Appointment of Arbitrators 22 Although Plaintiffs filed a timely petition and demand for arbitration with the Americ 23 Arbitration Association ("AAA") on February 11,2011, the actual arbitration proceeding has no 24 yet begun and no arbitrators have been selected. Although the amount of AAA filing fees ar 25 generally subject to a sliding scale based on the petitioner's estimated claim amount, AAA' 26

27 4 Petitioner need not file a formal complaint in Superior Court in order to receive a trial de novo.

28 Under the MMMAA, a petitioner who files only for arbitration is still entitled to request an appeal and trial de novo upon the conclusion of the arbitration proceedings. See 10 G.C.A. § 1o139(a)-(b ).

-8- rules provide that when a petitioner fails to disclose an amount for a claim, the filing fee i 2 $10,200.00. Plaintiffs maintain that the amount of the claim in this case is a question of fact to b 3 determined by the arbitrator and Plaintiffs are resolved not to provide an estimated amount fo 4 their claim. As such, AAA is demanding a filing fee of $10,200.00 before it will proceed wi 5 arbitration. (PL's Mot. for Appt. of Arbitrators, Exh. A) Plaintiffs assert that they cannot affor 6 to pay the onerous filing fee. Plaintiffs contend that this Court has inherent power to appoin 7 arbitrators and they request that it do so in this case so as to allow the arbitration to proceed in 8 timely and efficient manner. This Court disagrees that it has the power to appoint arbitrators or 9 even if it did have such power, that the Court would be justified in exercising that power 0 10 appointment in this case. 11 The MMMAA outlines the specific process that a petitioner must follow in order t 12 initiate and maintain an arbitration proceeding against a health care provider. Title 10, sectio 13 10103 requires that the demand for arbitration be filed with the "Association," which is define 14 by section 10101(a) as "the American Arbitration Association or other entity organized t 15 arbitrate disputes pursuant to this Chapter." 10 G.C.A. §§ 10103, 10101(a). Section 10103 16 explicitly states that "[t]he demand for arbitration shall not be filed in the Superior Court 0 17 Guam, and arbitration shall not be filed in the Superior Court of Guam, unless the petitioner 0 18 petitioners require the appointment of a Guardian Ad Litem ...." The MMMAA furthe 19 provides: 20 § 10107. Administration of Arbitration 21 The Association shall administer a proceeding filed under this Chapter. The administrative expense shall be as agreed to by the parties and the 22 Association, or as may be provided by the Association. The administrative costs 23 shall be equally shared by the parties subject to an award of costs by the panel as provide in § 10130 herein. 24 10 G.C.A. § 10107 (emphasis added). Finally, section 10110 provides that "the arbitratio 25 proceeding shall be subject to rules promulgated by the Association in conformance with thi 26

27 chapter." Plaintiffs offer no compelling legal authority supporting their argument that a judge 0 28 the Superior Court may appoint arbitrators in a proceeding filed under the MMMAA. In Ehrh

-9- & Associates, Inc. v. Superior Court, 185 Cal. App. 2d 1, 7 Cal. Rptr. 844 (Cl. App. 1960), th 2 one case cited by Plaintiffs, the issue was simply whether the trial court had authority to stay th 3 proceedings pending the outcome of arbitration. The California Court of Appeals held that th 4 court did have such discretion. Id. To the extent Ehrhart & Associates stands for the propositio 5 that a court may stay a lawsuit during the pendency arbitration, this Court agrees and thi 6 conclusion is wholly supported by the MMMAA. But this court disagrees with Plaintiff: 7 suggestion that this general principle grants this Court the authority to independently appoin 8 arbitrators in a separate proceeding where such appointment is not authorized by the governin 9 statutes. 10 In reading the MMMAA, this Court finds no basis upon which it can insert itself into th 11 arbitration proceedings to appoint arbitrators simply because Plaintiffs, who do not wish to stat 12 an amount for their arbitration claim under the Association's rules, fmd the associated fees to b 13 onerous. The statute clearly provides that the Association may set the fees to be paid by th 14 parties. Furthermore, the MMMAA implicitly precludes court involvement with the arbitratio 15 proceedings: the only authority granted to the Court by the MMMAA prior to an ,appeal from 16 final arbitration decision is the authority to stay a related court action and issue an order directin 17 the parties "to proceed with arbitration in accordance with the terms of this chapter." And th 18 terms chapter 10 clearly dictate that arbitration is to be had in accordance with the procedure 19 and rules established by the Association. 5 While unique circumstances or questions of law rna 20

22 5 Plaintiffs highlight that under title 10, section 10110, "the arbitration proceeding shall b 23 subject to rules promulgated by the Association in conformance with chapter." Plaintiffs sugges that because the Association has not promulgated any specific rules in accordance with chapte 24 10, Plaintiffs require assistance from the Court "in providing meaning to the legislativ 25 arbitration scheme." This Court merely finds that in the absence of specific rules promulgated b the Association to specifically conform with title 10, chapter 10 of the Guam Code, the genera 26 rules of the Association apply, so long as those rules do not conflict with the MMMAA. Cf Advanced Micro Devices, Inc. v. Intel Corp., 9 Cal. 4th 362,367,885 P.2d 994,996 (1994) (e 27 banc) (holding that in the absence of more specific guidance, the arbitrator is not restricted i 28 fashioning a remedy so long as that remedy bears a rational relationship to the underlyin governing document as interpreted by the arbitrator).

-10- warrant limited court involvement in the arbitration proceedings, this Court does not believe suc 2 involvement is appropriate under the circumstances presented in this case. 3 This Court is certainly sympathetic to Plaintiffs concerns and recognizes the burde 4 placed upon Plaintiffs by the hefty filing fee, especially given Plaintiffs' financial circumstances 5 (Decl. of Rafael C. Atilano, 2). However, this Court finds no legal grounds for grantin 6 Plaintiffs' request. Plaintiffs must resolve their issues in accordance with the provisions of th 7 MMMAA and the rules and procedures designated by the Association overseeing the arbitratio 8 process. 6 9 III. The Motion to Stay Proceedings 10 Given this Court's determination that the Complaint should be dismissed, the motion t 11 stay the proceedings is now moot. If Plaintiffs amend their Complaint so as to plead a timel 12 cause of action against any of the defendants, either party may then request a stay of th 13 proceedings. 14 CONCLUSION 15 Based on the foregoing, Defendant Zurich's motion to dismiss is herebx ,qRAN)'ED 16 This Court also dismisses the untimely Complaint against Defendants Dr. Bryson and SD 17 Clinic. The Complaint is dismissed WITHOUT PREJUDICE and Plaintiffs are granted leave t 18 amend within thirty days of this Decision and Order, if they so choose. In light of the dismissal 19 the motion to stay the proceedings is moot. 20 Plaintiffs' motion for appointment of arbitrators is____ 21

22 SO ORDERED this 13 th dav of March, 2012. \Mt 1M lo<"&1iol!'l\< \ 6<>het ebY certifY~ cOPY of the 23 Is • full !rue : : m ~ offlc. of 1M ~ on e .•.-AN Court of "oem c~ of \t>e ....,.-_.

25 Presiding Judge, Supe 26

28 6 The Declaration submitted by Mr. Atilano did not provide any indication that Plaintiffs hav attempted to resolve any hardship barriers to arbitration pursuant to AAA's rules or policies.

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