Judge: Layne H. Melzer, Case: 2022-01291443, Date: 2023-05-18 Tentative Ruling

Plaintiff Vessel Advisors, LLC

Petition to Compel Arbitration

Petitioner Vessel Advisors, LLC’s petition to compel respondent Willard Marine, Inc. to arbitrate their dispute under their written agreement for services is granted.

Service Is Proper

The petition and notice of hearing must be served at least 10 days before the hearing.  Code Civ. Proc. § 1290.2.  Where the arbitration agreement does not provide the manner in which service shall be made and the person on whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with section 1290.4(a) of the Code of Civil Procedure, for service in California the petition and notice of hearing must be served in a manner provided by law for the service of summons in an action.  Code Civ. Proc. § 1290.4(b). 

Proof of service must be filed five court days before the hearing.  CRC 3.1300(c). 

Petitioner has complied with these requirements.  [ROA ##10, 13.]

Arbitration

Code Civ. Proc. § 1281.2 provides, inter alia:

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 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, unless it determines that:

(a)  The right to compel arbitration has been waived by the petitioner; or

(b)  Grounds exist for the revocation of the agreement.

(c)  A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. …”

(Emphasis supplied.) 

CRC 3.1330 requires that a petition to compel arbitration or to stay proceedings pursuant to Code Civ. Proc. §1281.2 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be attached to the petition and incorporated by reference

“‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.  Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.  If the party opposing the petition raises a defense to enforcement--either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b))--that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.’”  Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal. App. 4^th 754, 761, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4^th 394, 413. 

Here, the petition with supporting declaration attaches Petitioner’s agreement with Respondent to arbitrate the current dispute.  [Petition at 5-6; Wagner Decl. (ROA #8), ¶¶ 2-3 and Ex. A at Terms and Conditions Addendum, §6(i).]  Petitioner also shows demand for arbitration was made but no response from Respondent.  [Petition at  Wagner Decl., ¶ 6.]

Moreover, Respondent has not responded to the Petition to deny any of these facts.  The allegations of the Petition are deemed admitted in the absence of a response.  Cal. Code Civ. Proc. § 1209. 

Accordingly, under section 1281.2, the court will compel arbitration of the dispute presented in Petitioners’ Petition.