Judge: James L. Crandall, Case: 21-1231113, Date: 2022-07-28 Tentative Ruling

Motion to Compel Arbitration

Defendants American Building & Remodeling Inc. and Jonathan D. Wolf petition to compel arbitration of Plaintiff’s claims against Defendants.

On June 23, 2022, Defendants’ Petition previously came on for hearing. The court continued Defendants’ Petition to July 28, 2022, based on the parties’ representation that they were going to go to mediation.

The court further ordered Plaintiff to file an opposition to the Petition, if any, by July 5, 2022, and noted that failure to file an opposition by that date “will be a waiver of the right to do so.” (ROA 28.)

Plaintiff did not file an opposition as of July 5, 2022 and has not filed an opposition to date. Thus, the court finds that Plaintiff has waived its right to oppose this Petition.

“California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, Code of Civil Procedure, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Code of Civ. Proc., § 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) Similarly, public policy under federal law favors arbitration and the fundamental principle that arbitration is a matter of contract and that courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)

In deciding a motion or petition to compel arbitration, trial courts must first decide whether an enforceable arbitration agreement exists between the parties and then determine whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.)

The opposing party has the burden to establish any defense to enforcement. (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 [“The petitioner ... bears the burden of proving the existence of a valid arbitration agreement and the opposing party, plaintiffs here, bears the burden of proving any fact necessary to its defense.”].)

According to Defendants’ Petition, arbitration is required pursuant to paragraph 11 of the Fee Agreement between the parties.

The Fee Agreement provides in relevant part:

11. ARBITRATION. Any dispute between the parties regarding the construction, application or performance of any services under this Contract, and any claim arising out of or relating to this Contract or its breach, including without limitation, claims for breach of contract, professional negligence, breach of fiduciary duty, misrepresentation, fraud and disputes regarding attorneys' fees and/or costs charged under this Contract (except as provided in Paragraph 12 below) shall be submitted to binding arbitration upon the written request of one party after the service of that request on the other party. The parties shall appoint one person to hear and determine the dispute. If the parties cannot agree, then the Superior Court of Orange County shall choose an impartial arbitrator whose decision shall be final and conclusive on all parties. The dispute shall be governed by the published Commercial Arbitration Rules of the American Arbitration Association then in effect. The parties shall bear their own legal fees and costs for all claims. The sole and exclusive venue for the arbitration and or any legal dispute shall be Orange County, California.”

12. STATE BAR FEE ARBITRATION. Notwithstanding paragraph 11 above, in any dispute subject to the jurisdiction of the Stale of California over attorney's fees, charges, costs or expenses, Client has the right to elect arbitration pursuant to the fee arbitration procedures of the State Bar of California, as set forth in California Business and Professions Code Section 6200, et seq. Those procedures permit a trial after arbitration, unless the parties agree in writing, after the dispute has arisen, to be bound by the arbitration award. If, after receiving a notice of client's right to arbitrate, Client does not elect to proceed under the State Bar fee arbitration procedures, and file such a request for fee arbitration within 30 days, any dispute over fees, charges, costs or expenses, will be resolved by binding arbitration as provided in paragraph 11 above. If either party rejects a non- binding fee arbitration award by timely submission of a request for trial de novo, HK and Client agree that in lieu of a trial de novo in court, the trial after arbitration shall be binding arbitration pursuant lo the provisions of Paragraph 11, above.

(Petition, Ex. 1, p. 2.)

All parties signed the Fee Agreement electronically. (Motion, 5.) Jonathan Wolf signed both as a guarantor in his individual capacity and on behalf of American Building & Remodeling, Inc. (Id.)

The court finds that Defendants have demonstrated the existence of an arbitration agreement. Further, the arbitration agreement applies to Plaintiff’s claims in this action.

Because Plaintiff did not oppose the instant Petition, Plaintiff has not met its burden of establishing any defense to enforcement.

Therefore, Defendants’ American Building & Remodeling Inc., Jonathan D. Wolf’s Unopposed Petition to Compel Arbitration is GRANTED.

Defendants are to give notice.

Future hearing dates:

11/29/22 – ADR Review Hearing