Judge Margaret L. Oldendorf, Case 22AHCV00484 2023-04-21 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 22AHCV00484, Date: 2023-04-21 Tentative Ruling

These consolidated cases concern a construction project. Pasadena Oaks Life Properties (Owner or Pasadena) and Signature Health Services, LLC (Signature or Developer) retained Jokake Construction Services, Inc. (Contractor or Jokake) to perform certain construction work on real property. The Contract was for the construction of a two-story psychiatric hospital known as Las Encinas.

Jokake and Pasadena entered into a Construction Agreement in April 2017; the contract had a Substantial Completion date of September 18, 2018. Jokake retained various subcontractors. Problems and delays arose, which the parties attempted to work through. Following a June 2019 mediation, Pasadena and Jokake executed an amendment to the contract. The disputes continued. In March 2022, Pasadena terminated the Contract. These (and other lawsuits) followed.

In July 2022, Jokake filed its lawsuit (22AHCV00484). The pleading contains several contract and common counts against Pasadena, plus a claim for violation of prompt payment statutes and for declaratory relief. It also includes a claim for breach of the implied warranty of correctness of plans; several fraud claims against Pasadena and Signature; and a claim for foreclosure of mechanic’s lien against Pasadena, Signature, Western Alliance Bank (WAB, Pasadena’s construction lender), and several subcontractors. Numerous subcontractors filed actions against Jokake for breach of contract, common counts, and foreclosure of mechanic’s liens. The Subcontractors also have claims against Jokake’s performance and payment bonds with its surety, Travelers Casualty and Surety Company of America (Travelers).

In August 2022, Pasadena filed a motion to compel Jokake to arbitrate the disputes between them. The hearing on that motion was continued, and in the interim Jokake’s motion for consolidation was granted. Jokake then agreed to arbitration with Pasadena and filed an arbitration demand. Pasadena took its motion off calendar. Jokake’s arbitration demand includes claims against its subcontractors; Pasadena filed a counter-claim in arbitration alleging overpayment, defective work, and delays to Project completion.

In December 2022, Jokake sought an order staying this action pending completion of the arbitration. Various subcontractors opposed, strenuously arguing that they were not subject to any arbitration agreement and that there was no basis for a stay. That motion was denied without prejudice to Jokake bringing a motion to compel arbitration. This motion followed.

The subcontracts do not contain an arbitration provision. Jokake’s argument that arbitration provisions in the general agreement are incorporated into the subcontracts fails. Additionally, pursuant to Code Civ. Proc. §1281.5, Jokake was required to seek this relief within 30 days of filing its complaint. It waited eight months to file a motion to compel arbitration. Under the statute and case law interpreting it, Jokake waived any right to compel the subcontractors to arbitrate. The motion is therefore denied.

Code Civ. Proc. §1281 provides: “A written agreement to submit to arbitration an existing controversy or a controversy thereafter existing is valid, enforceable, and irrevocable, save upon such grounds as exist for the revocation of any contract.”

Code Civ. Proc. §1281.2 provides that upon petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate and a party’s refusal to submit to arbitration, the court shall order the parties to arbitrate the controversy if it determines that an agreement exists, unless it determines that the right to arbitrate has been waived, that grounds exist for revocation, or that a party to the agreement is also party to a pending litigation arising out of the same facts and there exists a possibility of conflicting rulings on a common issue of fact or law.

In such a situation, the court may: (1) refuse to enforce the arbitration agreement and order intervention or joinder of all parties in a single action; (2) order intervention or joinder as to all or only certain issues; (3) order arbitration among the parties who have agreed to arbitration and stay the action pending outcome of arbitration; or (4) stay arbitration pending outcome of the litigation.

Arbitration is a matter of contract. Although the California Arbitration Act (Code Civ. Proc. §1281 et seq.) is meant to encourage enforcement of arbitration agreements, absent a clear agreement to submit disputes to arbitration courts will not infer that jury rights have been waived. Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59.

California Rules of Court, rule 3.1330 provides, “A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 and 1281.4 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 physically or electronically attached to the petition and incorporated by reference.”

Jokake has met its evidentiary burden of providing copies of the written agreements upon which it relies. The contracts are contained in its Compendium of Evidence. The Declaration of Casey Cartier (Cartier), Jokake’s president and CEO, is offered in support of authentication of these exhibits. No party has objected to the authenticity of the documents.

Exhibit 1 is a copy of the Construction Agreement between Pasadena and Jokake; this document is also referred to herein as the “General” or “Prime” contract. It is dated April 18, 2017. Exhibit 2 is a written modification to that agreement, dated May 15, 2020; it is referred to herein as the Amendment.

Exhibits 3-22 are copies of the Master Construction Subcontract Agreements (MCSAs) and Construction Subcontract Agreements (CSAs) between Jokake and each of the subcontractors it seeks to compel to arbitration.[1] Each subcontractor signed both an MCSA and a CSA.

Section 22.18 of the general contract governs Dispute Resolution. It defines “Disputes” as “all unresolved claims, counterclaims, disputes, controversies, and other matters in question between Contractor and Owner arising out of or relating to the Contract Documents or the breach thereof.” (Emphasis added.)

Section 22.18.2 provides, “Owner and Contractor shall submit all Disputes to mediation prior to initiating arbitration.” (Emphasis added.) And Section 22.18.2(d) provides for voluntary arbitration with JAMS if mediation fails. The Amendment altered this to from a voluntary to a mandatory arbitration, and changed the provider to the American Arbitration Association. Exhibit 2 at §22.18.3.

Read together, these provisions obligate Pasadena and Jokake to arbitrate any disputes they have with each other arising out of the Construction Agreement.

The last paragraph of Section 22.18 provides, “Contractor promises and agrees that the provisions of this Section 22.18 shall be included in all subcontracts related to the Work into which it may enter, and that if any dispute subject to arbitration under this Section 22.18 involves such subcontract, the rights and liabilities of Owner, Contractor and any subcontractors who may be involved shall be determined in the single arbitration proceeding.”

Section 22.18 appears to reflect an intent that subcontractor claims be determined along with those of Pasadena and Jokake, in a single arbitration proceeding. Jokake was contractually obligated to include the provisions of Section 22.18 in all subcontracts related to the project. Jokake argues that it did so through Section 1.1 of the MCSAs. Memorandum of Points and Authorities at 8:24-28.

1.1 For the purposes of this Subcontract, “Contract Documents” shall mean (a) this

Subcontract (including the General Conditions, Scope of Work Addendums (as defined below), documents, specifications, schedules or other information included herein or attached hereto), (b) the prime contract between Contractor and the owner of the Project (“Owner”) (including any general conditions, documents, specifications, scopes of work, schedules or other information included therein or attached thereto) (collectively, the “General Contract”), (c) any modification(s) to the General Contract, whether before or after the date of this Subcontract, and (d) any modification(s) to this Subcontract after the date of this Subcontract. In the event of a conflict between the General Contract and this Subcontract, the terms of this Subcontract shall govern.

Section 1.2 The General Conditions attached hereto are fully incorporated into and part of this Subcontract.

Section 1.1 The Contract Documents for this Subcontract include this Agreement, the current executed [MCSA]; the General Contract between Contractor and Signature Healthcare Services, LLC, located at [address] dated 2/14/17 (the General Contract); the General, Supplementary and any other conditions of the General Contract; Drawings; Specifications; all Addenda issued before the execution of this Subcontract; the Project Schedule as may be amended from time to time, and any other documents referred to in the General Contract (the Contract Documents).

Section 1.2 The Contract Documents for this Subcontract are fully incorporated in this Subcontract as if fully set out herein.

Section 1.3 Subcontractor has carefully reviewed the Contract Documents and agrees to be bound thereby. [Additional language omitted here.]

Section 1.4 Subcontractor shall assume toward Contractor with respect to the Subcontract Work all of the obligations and responsibilities that Contractor assumes toward Owner. Subcontractor shall have the benefit of all rights and remedies against Contractor that Contractor, by the Contract Documents, has against Owner, except as otherwise provided herein. In the event that the Contract Documents conflict with or are inconsistent with this Agreement or the General Conditions attached to the Jokake Subcontract, this Agreement and the General Conditions shall govern.

First, Section 1.1 of the CSAs defines Contract Documents differently than Section 1.1 of the MCSAs; it identifies the general contract as an agreement between Signature and Jokake dated February 14, 2017. Jokake has not offered the Signature contract into evidence. In addition, only the CSAs include language incorporating the Contract Documents into the subcontract.

Jokake urges that pursuant to Section 14.1 of the MCSAs, the subcontractors agreed to be bound to Jokake to the same extent Jokake is bound to Pasadena under the terms of the Prime Contract. It admits, however, that Graycon and Sharpe MCSAs do not contain the same Section 14.1 language as the others. Memorandum of Points and Authorities at 9:1, fn. 1.

The Sierra Fireproofing MCSA (Exhibit 7) is referenced here to examine Section 14.1. It provides:

14.1 In the event of (sic) dispute between Contractor and Subcontractor over any aspect of this Subcontract, Subcontractor agrees that no such dispute will interfere with the progress and performance of the Subcontract Work under this Subcontract, and Subcontractor shall perform under the terms of the Subcontract without cessation or delay. In the event of any dispute or claim between Contractor and Owner which directly or indirectly involves the Subcontract Work required to be performed by Subcontractor under this Subcontract or in the event of any dispute or claim between Contractor and

board, agency or court. If any dispute or claim is prosecuted or defended by Contractor, and Subcontractor is not directly a party of (sic) litigant, Subcontractor agrees to cooperate fully with Contractor and to furnish all documents, statements, witnesses and other information required by Contractor for such purpose. Subcontractor shall reimburse Contractor for all expenses and costs, including reasonable attorneys’ fees, incurred in connection with pursuing the claim to the extent of the Subcontractor’s interest in such claim or dispute. It is expressly understood and agreed in connection with the determination of such claims or disputes that Contractor never shall be liable to Subcontractor to any greater extent that Owner is liable to Contractor.

Section 14.4 of Graycon’s MCSA provides that the subcontract is to be governed by California law and that any dispute arising from the subcontract shall be heard in the state or federal court where the project is located.

Section 14.4 of the other MCSAs provide that the subcontract is deemed to have been entered into in Maricopa County, Arizona and is to be governed in accordance with the laws of the state where the project is located. It contains a provision by which each subcontractor agrees that claims or disputes arising out of the subcontract shall be heard in the state and federal courts situated in Maricopa County.

The MCSAs do not contain an arbitration provision. Jokake’s argument is that the subcontractors are required to arbitrate their claims against it because the arbitration provision in the Prime Contract (Section 22.18) is incorporated into the MCSAs. Jokake fails to establish this, however.

“For the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal, the reference must be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.” Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44, 54.

Shaw involved a patent agreement between a professor and the university that employed him. When hired, the professor signed a two-sided, single-page document. One side of the document contained a “Patent Agreement” and the beginning of a section called “University Policy Regarding Patents.” The patent policy is continued on the reverse side. In the Patent Agreement the professor agreed to disclose any inventions he created and to assign his interest in any patent to the university. The Patent Policy provided that in exchange for the assignment the employee will receive 50% of net royalties and fees received by the university for the invention. Three years later, the university amended its Patent Policy so that inventors received 50% of the first $100,000 and then increasingly smaller percentages thereafter. The issue in Shaw was whether the Patent Policy was incorporated into the Patent Agreement. Shaw determined that it was: “The patent agreement (1) directs Shaw to “Please read the Patent Policy on reverse side and above,” and (2) states that, in signing the patent agreement, Shaw is “not waiving any rights to a percentage of royalty payments received by University, as set forth in University Policy Regarding Patents [.]” (Italics added.)” Id. at 54.

On those facts the court had no problem finding that the Patent Policy had been incorporated into the Patent Agreement.

Jokake relies on Slaught v. Bencomo Roofing Co. (1994) 25 Cal.App.4th 744, which holds that parties may validly incorporate the terms of another document into their contract. Slaught is procedurally similar to the facts here, in that it concerns a contractor who sought to compel subcontractors to join in arbitration between it and an owner. However, the contract language at issue is distinguishable.

In Slaught, the construction contract between the owner and contractor contained the following language: “Any dispute arising out of the work agreed on herein must be raised and settled in an arbitration proceeding held in accordance with the Construction Industry Rules of the American Arbitration Association then in effect or, if not then in effect, in accordance with Part III, Title 9, of the Code of Civil Procedure.” Here, the language in Section 22.18 of the Prime Contract is different because it defines the disputes to be those between Owner and Contractor, rather than “any dispute.”

“5. ASSUMPTION OF PRINCIPAL CONTRACT: The work to be done hereunder is a portion of the work required of Contractor under the General Contract referred to in the Special Conditions hereof. Insofar as applicable, Subcontractor shall be bound by all of the terms and conditions of the Contract Documents, and shall strictly comply therewith. All rights and remedies reserved to Owner under the Contract Documents shall apply to and be possessed by Contractor in its dealings with Subcontractor.”

Section 1.1 of the MCSAs at issue here is different in important respects. First, there is no language requiring “assumption” or incorporation of the construction agreement between Jokake and Pasadena. Section 1.2 of the MCSAs incorporates only the “General Conditions,” not the “Contract Documents.” Section 1.2 of the CSAs incorporates the Signature contract, which is not before the Court. Thus, to the extent Jokake’s motion to compel arbitration depends upon incorporation of Exhibit 1 (the Pasadena-Jokake Construction Agreement) into the subcontracts it fails because Section 1 of the MCSAs does not incorporate the “Contract Documents” as defined; and Section 1 of the CSAs incorporates a general contract that is not in evidence.

Second, there is no language in either of these sections stating that the subcontractors “shall be bound” by or “shall strictly comply” with the general contract. (Language in Section 14.1 about subcontractors agreeing to be bound is discussed infra, but not all subcontracts contain that language.)

Many of the subcontractors rely on Remedial Construction Services, LP v. AECOM, Inc. (2021) 65 Cal.App.5th 658 in opposing Jokake’s motion. Remedial is procedurally different because the dispute there was only between the contractor and subcontractor; there was no dispute between owner and contractor. But, its analysis of the incorporation issue is nonetheless helpful.

The Remedial case arose out of a demolition and remediation project at Gaviota Terminal in Goleta. The owner of the real property, Gaviota Terminal Company, commissioned a remedial action plan to deal with the presence of chemicals. Shell Oil had a leasehold interest in the real property and was Gaviota’s agent. Shell contracted with AECOM to act as prime contractor for the work. The prime contract stated it was governed by Texas law and had a provision calling for arbitration in Houston, where Shell is headquartered.

AECOM entered into a subcontract with Remedial. Remedial came to believe that AECOM’s acts and omissions were causing unnecessary and costly delays, and it sued AECOM for damages stemming from its extra expenses. AECOM moved to compel arbitration on the ground that the subcontract incorporated the prime contract. The trial court’s denial of AECOM’s motion was affirmed on appeal.

Article 22 of the subcontract provided: “The contract between Contractor and [Owner] ... is hereby incorporated into and made a part of this Agreement by reference. Subcontractor assumes toward Contractor all of the obligations and responsibilities contained in the Prime Agreement or client flow-down provisions ... that Contractor assumes towards its Client as they relate to Subcontractor’s performance of the Work. In the event of a conflict between any provision of this Agreement and the Prime Contract the more restrictive provision shall govern.”

The Remedial court found that though the subcontract between Remedial and AECOM incorporated the 151-page prime contract (id. at 661), pursuant to Article 22, such incorporation means that Remedial assumed towards AECOM the obligations AECOM owed to Shell under the prime contract as they relate to performance on the contract: “There is no indication this would include [Remedial’s] assumption of AECOM and Shell’s agreement to arbitrate their own disputes.” Id. at 664.

Article 22 of the AECOM subcontract may be compared to the incorporation provisions of Section 1.1 and the Section 14.1 of the MCSAs. Section 14.1 of most of the MCSAs (though not Graycon’s) provides in part, “Subcontractor agrees to be bound to Contractor to the same extent that Contractor is bound to Owner by the terms of the Contract Documents and abide all decisions, findings or determinations made thereunder by the person so authorized in the Contract Documents, by an administrative agency or court of competent jurisdiction or arbitration proceeding boards, whether or not Subcontractor is a party of the proceedings before said persons, board, agency or court.” This language does not obligate subcontractors to arbitrate their disputes with Jokake because, as explained above, the Contract Documents were not incorporated into the MCSAs. Even if they had been, the subcontractors would only be bound to Pasadena to the same extent as Jokake, and Jokake is only obligated to arbitrate “Disputes,” which is defined as disputes between Jokake and Pasadena.[2]

Section 14.1 is written differently than Article 22 in Remedial, where the words “as they relate to performance of the Work” limited the extent to which subcontractors were bound to the contractor pursuant to the incorporated general contract. Nevertheless, the Court finds the same reasoning persuasive here. It is not reasonable to conclude that the arbitration provision in the Jokake-Pasadena general contract, which as drafted requires only arbitration of disputes between those two parties, was intended to override the forum selection clauses in the subcontracts. See Remedial, supra, 65 Cal.App.5th 658, 664.

In sum, Jokake has not established the existence of a written agreement between itself and any subcontractor requiring the subcontractor to arbitrate disputes with Jokake. The MCSAs define Contract Documents to include the Prime Contract between owner and contractor, but do not incorporate those documents. The CSAs define contract documents to include the general contract between Signature and Jokake and incorporates that document into the CSA, but Jokake has not offered a copy of the Signature-Jokake agreement into evidence. Section 14.1 of some (but not all) of the MCSAs does not compel subcontractors to arbitrate because the contract documents are not incorporated; and even if they had been they do not require arbitration of subcontractor disputes. Without evidence of a writing obligating the subcontractors to arbitrate their disputes, Jokake’s motion to compel arbitration fails.

Code Civ. Proc. §1281.5 governs the right of a party who has recorded a lien and an action to enforce the lien, as Jokake has done here by filing its complaint. This section requires that such a party does not waive its right to compel arbitration, if in addition to filing the enforcement action, the party also:

(1) Includes an allegation in the complaint that the claimant does not intend to waive any right of arbitration, and intends to move the court, within 30 days after service of the summons and complaint, for an order to stay further proceedings in the action.

(2) At the same time that the complaint is filed, the claimant files an application that the action be stayed pending the arbitration of any issue, question, or dispute that is claimed to be arbitrable under the agreement and that is relevant to the action to enforce the claim of lien.

Subdivision (b) provides, “Within 30 days after service of the summons and complaint, the claimant shall file and serve a motion and notice of motion pursuant to Section 1281.4 to stay the action pending the arbitration of any issue, question, or dispute that is claimed to be arbitrable under the agreement and that is relevant to the action to enforce the claim of lien. The failure of a claimant to comply with this subdivision is a waiver of the claimant's right to compel arbitration.”

45. Pursuant to Code of Civil Procedure section 1281.5, Jokake does not intend to waive any right to arbitration, and if Pasadena fails or refuses to stipulate to arbitrate, then Jokake intends to move the court, within thirty days after service of the summons and Complaint, for an order to stay further proceedings in this action pending arbitration.

While Jokake made this allegation, it failed to actually follow through and seek an order staying this action within 30 days. The complaint was filed in July 2022. Jokake did not file a motion seeking a stay until the end of December 2022.

Jokake argues that, given the sequence of events that occurred following the filing of its complaint, including its successful effort to consolidate the actions, Jokake’s motion to compel arbitration and stay this action was filed “within a reasonable time.” Reply at 11:3. No legal authority is cited permitting this motion to be made within a “reasonable” time rather than the statutory 30 days.

Case law holds that a party who files an action to enforce a mechanic’s lien but who does not at the same time request the action be stayed pending arbitration waives any right to arbitration. Von Becelaere Ventures, LLC v. Zenovic (2018) 24 Cal.App.5th 243, 249.

Jokake’s motion to compel the subcontractors to arbitrate is denied. Jokake has not established the existence of a written agreement compelling any subcontractor to arbitrate its disputes with Jokake. Absent such a writing, the Court has no authority to order the subcontractors to arbitration. Additionally, Jokake waived its right to compel arbitration by not timely requesting such relief.

The motions by Graycon and ENC Lath & Plaster for orders that they are not subject to arbitration and are not required to participate in the arbitration proceeding between Jokake and Pasadena are taken off calendar as moot in light of the ruling on this motion.

[1] Exhibits 23 and 24 are copies of email correspondence between counsel. Exhibit 25 is the declaration of Signature’s counsel’s stipulation to arbitration. Exhibits 26-28 are copies of pleadings in the arbitration proceeding that has commenced between Pasadena and Jokake.

[2]Though it is not necessary to the motion and therefore not decided here, it appears that the language in Section 22.18 intends to bind subcontractors to determinations made in arbitration whether or not they participate. That is very different from compelling them to participate.

These consolidated cases concern a
construction project. Pasadena Oaks Life Properties and Signature Health
Services, LLC retained Jokake Construction Services, Inc. to construct a
two-story psychiatric hospital known as Las Encinas.

Jokake and Pasadena entered into a Construction
Agreement in April 2017; the contract and had a Substantial Completion date of
September 18, 2018. Jokake retained various subcontractors. Problems and delays
arose, which the parties attempted to work through. Following a June 2019
mediation, Pasadena and Jokake executed an amendment to the contract. The
disputes continued. In March 2022, Pasadena terminated the Contract. These
related and consolidated cases followed.

Jokake’s complaint contains its claims
against Pasadena as well as a claim for foreclosure of mechanic’s lien against
Pasadena, Signature, Western Alliance Bank (WAB, Pasadena’s construction
lender), and several subcontractors. Numerous subcontractors filed actions
against Jokake for breach of contract, common counts, and foreclosure of
mechanic’s liens. The Subcontractors also have claims against Jokake’s
performance and payment bonds with its surety, Travelers Casualty and Surety
Company of America (Travelers). Jokake answered those complaints. Jokake’s
request for judicial notice of the
actions filed by subcontractors in this consolidated action (RJN Exhibits 1-9)
and in the related actions (RJN Exhibits 28-31), and of Jokake’s answers (RJN
Exhibits 10-18; 32-34) is granted.

There is currently an arbitration
proceeding pending between Jokake and Pasadena.
Pasadena asserts claims against Jokake in the arbitration for
construction defects. Jokake is seeking
to assert claims in the arbitration against its subcontractors for breach of
contract, breach of warranty, breach of express indemnity, and equitable
indemnity.

Jokake has also filed a motion in this action to
compel the subcontractors to arbitrate these claims. This motion for leave to amend was filed in
the event the arbitration motion is denied. By separate order, the motion to
compel arbitration is denied. Consequently, Jokake requests leave to file a
single cross-complaint against all subcontractors in this action setting forth
its claims against them. The motion is not opposed on any substantive basis.[1]
Good cause exists for the relief requested. The motion is therefore granted.

(a) A party shall file a cross-complaint against any
of the parties who filed the complaint or cross-complaint against him or her
before or at the same time as the answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any
time before the court has set a date for trial.

(c) A party shall obtain leave of court to file any
cross-complaint except one filed within the time specified in subdivision (a)
or (b). Leave may be granted in the interest of justice at any time during the
course of the action.

“A motion to file a cross-complaint at any time
during the course of the action must be granted unless bad faith of the moving
party is demonstrated where forfeiture would otherwise result.” Silver
Organization, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.

The question whether the proposed consolidated
cross-complaint is permissive or compulsory is a close one. It is compulsory in
the sense that claims against the subcontractors arise out of the same facts
and are related to the subcontractor actions; it is permissive to the extent
that the claims did not exist at the time Jokake answered the subcontractor
complaints. Code Civ. Proc. §426.30. Based on the sequence of events here, the
Court concludes that the cross-complaint should be considered permissive. Relief
is therefore governed by Code Civ. Proc. §428.50 rather than §426.50.

On motions for leave to file a permissive cross-complaint,
the determinative issue is whether bad faith is shown. Here, there is no
evidence Jokake acted in bad faith by failing to file cross-complaints against
each of the subcontractors at the time it answered those complaints. Katie
Brach, one of Jokake’s attorneys, states in her Declaration that in January
2023, Pasadena filed a counterclaim in the arbitration proceeding alleging
defects with the building’s construction. Declaration of Katie Brach, ¶3 and
Exhibit 2. Ms. Brach identifies the subcontractors whose work is implicated in
Pasadena’s counterclaim. Id. at ¶7.

The only substantive argument raised in opposition to
this motion is that in ¶37 of the proposed cross-complaint, Jokake alleges that
the subcontractors are bound by §14.1 of the subcontracts. The arbitration
motion is being dealt with in a separate order issued this date. This allegation in the proposed
cross-complaint will not affect the Court’s decision on this question.

Jokake’s motion for leave to file a cross-complaint in
the consolidated actions is granted. Jokake is ordered to file the
cross-complaint within 10 days.

[1]
Huntington Glazing, which has a separate action pending against Jokake (Case
No. 20GDCV00713), has objected to the motion for leave to amend on the ground
that it was not provided with proper notice of the motion. If Huntington does not waive this argument at
the hearing, the Court’s tentative will be modified to exclude them, and
require Jokake to bring a separately noticed motion as to Huntington.