Judge: Mark H. Epstein, Case: 22SMCV00982, Date: 2022-12-28 Tentative Ruling

Case Number: 22SMCV00982    Hearing Date: December 28, 2022    Dept: R

The court is in receipt of defendant's ex parte application for a stay of all proceedings until its application for an order compelling arbitration can be determined. 

The Code of Civil Procedure contemplates that an application to compel arbitration will stay all litigation in court until determined and the statute uses the mandatory "shall" language.  That would seem to imply that the application should be granted.

The court has seen no opposition, but assumes that plaintiff will raise two points: (1) there are no exigent circumstances for the ex parte application and (2) that defendant waited too long before filing its motion to compel arbitration.

As to the first, the exigent circumstances are not particularly severe, but it is true that if the motion to compel further discovery responses is heard before the arbitration motion is heard, there is at least some problem in that the court, rather than the arbitrator, will determine discovery issues.  While the court could always make its order conditional, that seems like a waste of everyone's time and the court's resources.  There is enough exigency to allow the ex parte to be heard.

As to the second, there is some question in the court's mind as to why defendant waited so long to bring the motion.  One would have thought it would have been brought immediately, and certainly as soon as the discovery was propounded.  But while there is a question in the court's mind, the statute does not seem to depend on that unless the delay was so long as to constitute a waiver of the right to arbitrate, and even then the argument would go more to the arbitration motion's merits than the statutorily imposed stay.

Therefore, subject to opposition, the court is inclined to GRANT the application and stay all proceedings until the motion to compel arbitration is heard in Department O.  The motion to compel further responses now set for January 31, 2023, is therefore HELD IN ABEYANCE.  It will be set by Department O if the motion to compel arbitration is denied.