Judge: Malcolm Mackey, Case: 20STCV15739, Date: 2022-08-31 Tentative Ruling

Case Number: 20STCV15739    Hearing Date: August 31, 2022    Dept: 55

CUBILLOS v. COMSTOCK                                                          20STCV15739

Hearing Date:  8/31/22,  Dept. 55

#11:   PETITION TO COMPEL ARBITRATION.

Notice:  Okay

No Opposition

MP:     Defendant/Petitioner MARVIN MAZARIEGO.

RP:     

Summary

On 4/24/20, plaintiffs filed a Complaint alleging that Defendant Gary Comstock, and his real estate brokerage company, Defendant Prime Properties, perpetuated fraud on Plaintiffs Marco and Edna Cubillos, leading to their purchase of a residential real property having undisclosed defects, including related to its foundation, and slanted flooring.

The Causes of Action are (1) FRAUD and (2) NEGLIGENCE.

On 3/5/21, the Court entered default against Defendant.

Default Judgment was filed 3/15/21.

On 8/9/21, Plaintiff filed a “NOTICE OF SETTLEMENT BETWEEN PLAINTIFFS AND CROSS-DEFENDANT LAUREN RAMIREZ.”

MP Positions

Moving party requests an order compelling arbitration, awarding costs, and staying this action, on bases including the following:

·         Petitioner and respondents/plaintiffs entered into a written agreement in which, in Paragraph 22, they agreed to arbitrate “any dispute or claim arising between them out of this Agreement, or any resulting transaction” arising out of the agreement. (Exhibit “A.”)

·         Plaintiffs’ Complaint falls within the scope of the arbitration agreement.

·         That Defendant Gary Comstock is not a party to the arbitration agreement does not prevent arbitration. Petitioner will seek to have the neutral arbitrator determine that Gary Comstock must be joined in the arbitration.

Tentative Ruling

The unopposed petition is granted, as prayed.

Plaintiffs and Defendant MARVIN MAZARIEGO shall arbitrate the controversies between them, including the entire Complaint, in accordance with their agreement to arbitrate. 

This entire case is stayed until such arbitration has been completed.

Any parties opposing arbitration have the burden to prove any fact necessary to a defense to arbitration enforcement.  Gatton v. T-Mobile USA, Inc.  (2007) 152 Cal.App.4^th 571, 579.

Where a court has ordered arbitration, it shall stay the pending action, until an arbitration is had in accordance with the order to arbitrate, or another earlier time, and the stay may be with respect to an issue that is severable.  CCP §1281.4;  Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal. 4th 303, 320;  Twentieth Century Fox Film Corp. v. Sup. Ct. (2000) 79 Cal.App.4^th 188, 192;  Heritage Provider Network, Inc. v. Sup. Ct.  (2008) 158 Cal.App.4th 1146, 1152, 1154 n. 12.