Judge: Layne H. Melzer, Case: 22-01250359, Date: 2022-08-04 Tentative Ruling

Pltf. Cinnaholic Franchising Llc
Motion to Compel Arbitration

The Court is inclined to grant Petitioner Cinnaholic Franchising LLC’s petition to compel respondent Calipto Foods, Inc. to arbitrate.

The court understands the parties agree the arbitration should be conducted in Orange County, California.

A party seeking to compel arbitration under section 1281.2 must plead and prove (1) the existence of a written arbitration agreement and (2) that the other party has refused to arbitrate.  Code Civ. Proc., § 1281.2; Mansouri v. Sup. Ct. (2010) 181 Cal.App.4th 633, 640-641; see Hyundai Amco America, Inc. v. S3H, Inc. (4/3 2014) 232 Cal.App.4th 572, 577.

Petitioner alleged in its petition that Respondent refused to arbitrate.  Respondent denied this allegation in its response.  The parties have submitted evidence of post-petition correspondence between counsel in which Petitioner’s counsel asks whether Respondent will agree to arbitrate and Respondent’s counsel either evades or is silent.  [Petition; Opposition Memorandum; Notice of Hearing and Amended Petition, Ex. C.; Krongold Decl., Exs. 2 and 3.]

First, the court does not believe it is compelled to ignore the evidence of correspondence after the petition was filed.  These facts exist at the time of the court’s decision and are relevant to it.  Judicial economy would not be served by requiring Petitioner to commence new proceedings.

Second, the court finds this evidence shows a current refusal to arbitrate.  Certainly, Respondent has not agreed to arbitrate.  In the face, of Petitioner’s petition and requests, Respondent’s opposition and failure to agree arbitration amounts to a refusal.

The Court recognizes that proof of a refusal to arbitrate was wanting at the time of the original Petition.  The Court could grant this Petition outright or permit an amendment to conform to proof.  But there is little to be gained by an outright denial of the Petition where it appears the parties are obliged to arbitrate.

Counsel shall meet and confer in advance of the hearing to discuss the propriety of a stipulation to resolve this matter.