Judge: Kristin S. Escalante , Case: 23STCP00336, Date: 2023-03-22 Tentative Ruling

Case Number: 23STCP00336    Hearing Date: March 22, 2023    Dept: 24

CASE NAME: Edward Shkolnikov et al. v. Richard Guy Leff

CASE NUMBER: 23STCP00336 DEPARTMENT 24

COMPL. FILED: 02/06/2023 HEARING DATE: Wed., 03/22/2023

Petition to Compel Binding Arbitration

NATURE OF PROCEEDINGS: Petition PETITION FOR ORDER COMPELLING ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF EDWARD SHKOLNIKOV IN SUPPORT. DOCUMENTS: Notice of Hearing; Petition; POS;

MOVING PARTY: Edward Shkolnikov (Petitioner); Radmila Shkolnikov (Petitioner)

RESP. PARTY: Richard Guy Leff (Respondent)

TENTATIVE RULING:

The above-captioned matters are called for hearing.

The Court has read the moving papers in the above-captioned motions and announces its tentative ruling in open Court.

The PETITION FOR ORDER COMPELLING ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF EDWARD SHKOLNIKOV IN SUPPORT filed by Petitioners Edward Shkolnikov and Radmila Shkolnikov filed on 02/06/2023 is GRANTED in part.

The court declines to order arbitration with the Hon. John P. Shook (Ret.) at Alternative Resolution Centers as it is not required under the arbitration provision. The parties are ordered to be meet and confer regarding an arbitrator. In all other respects the Petition is granted.

A Post-Arbitration Status Conference is scheduled for ---- at 08:30 AM in Department 24 at Stanley Mosk Courthouse.

Petitioners Edward Shkolnikov (“Edward”) and Radmila Shkolnikov (“Ramila”) (collectively “Petitioners”) move for an order compelling Richard Guy Leff (“Respondent”) to arbitrate the parties’ dispute regarding Respondent’s sale to Petitioners of the real property located at 19101 Sarita Place, Tarzana, CA 91356 (“subject property”). (Notice of Pet., at p. 1.) Petitioners also request an order that the parties proceed with arbitration before the Hon. John P. Shook (Ret.) at Alternative Resolution Centers. (Notice of Pet., at p. 2.)

DISCUSSION

Upon a “petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that 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. . .” (Code Civ. Proc., § 1281.2)

“[W]hen presented with a petition to compel arbitration, the court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute.” ((Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59.) “Only the valid and binding agreement of the parties, including all material terms well-defined and clearly expressed, may be ordered specifically performed.” (Ibid.) An arbitration agreement “must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Engalla, supra, 15 Cal.4th at p. 972.) It would then be plaintiff’s burden, in opposing the motion, to prove by a preponderance of the evidence any fact necessary to her opposition. (See Ibid.) “In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Ibid.)

The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Engalla, supra, 15 Cal.4th at p. 972.) It would then be plaintiff’s burden, in opposing the motion, to prove by a preponderance of the evidence any fact necessary to her opposition. (See Ibid.) “In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Ibid.)

Here, Petitioners attach the written contract between the parties to Edward’s declaration. (Edward Dec., ¶ 25, Ex. G.) This is sufficient to meet Petitioners’ burden. (See Gamboa, supra, 72 Cal.App.5th at pp. 165-66.) The terms of the arbitration provision are as follows:

Dispute Resolution [¶] MEDIATION: [¶] The parties agree to mediate any dispute or claim arising between them out of this agreement, or any resulting transaction, before resorting to arbitration or court action . . . [¶] ARBTIRATION OF DISPUTES: [¶] The Parties agree that any dispute in Law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration.”

(Edward Dec., ¶ 25, Ex. G.) The agreement contains a section for buyer and the seller’s initials with two sets of initials, one of which Edward declares is Respondent’s signature. (Edward Dec., ¶ 25, Ex. G.) Edward also declares that Petitioners demanded mediation and arbitration of the dispute, but Respondent refused to “respond or submit the matter to mediation or arbitration.” (Edwards Decl., ¶¶26-28, Ex. H, I, J.)

Respondent has not submitted an opposition to the Petition and there is no indication that the right to arbitration was waived, any grounds exist for revocation of the agreement, or there is pending litigation related to the matter. Accordingly, the court finds a valid arbitration agreement exists. Petitioners have set forth the contents of the arbitration provisions and attached a copy of to Edward’s declaration.

Since the agreement is silent on delegation, this court decides the question of arbitrability. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771 [court decides absent “clear and

unmistakable” evidence of delegation to arbitrator].) Petitioners articulate that the dispute between the parties is about Respondent’s failure to disclose and obfuscation of the fact that the pool deck of the subject property was not permitted. Now Petitioners anticipate expending upwards of $400,000 to obtain a permitted pool deck. This dispute is expressly within the scope of the provision which states “that any dispute in Law or equity arising between them out of this Agreement or any resulting transaction” of the real estate contract. (Edward Dec., ¶ 25, Ex. G.) As the dispute is covered by a valid arbitration agreement, the court finds the petition to compel arbitration proper.

The court grants the petition to compel binding arbitration and for court appointment of an arbitrator. Respondent is ordered to submit to arbitration “with a retired judge or justice, or any attorney with at least 5 years of residential real estate Law experience, unless the parties mutually agree to a different arbitrator.” (Edwards Decl., ¶ 25, Ex. G.)

The arbitration provision does not require Respondent to arbitrate with a specific company or specific judge. Accordingly, the court declines to order arbitration with the Hon. John P. Shook (Ret.) at Alternative Resolution Centers. The parties are ordered to be meet and confer regarding an arbitrator.

Moving party is directed to give notice.