Judge: Mark H. Epstein, Case: 23SMCV04271, Date: 2024-03-21 Tentative Ruling

Case Number: 23SMCV04271    Hearing Date: March 21, 2024    Dept: I

The unopposed motion to compel arbitration is DENIED.  It is the moving party’s burden to establish the existence of a binding arbitration agreement.  Here, the agreement is attached to the motion.  It includes a box of terms with a heading in very large font stating “ARBITRATION OF DISPUTES.”  The court agrees with the defense that the arbitration clause is sufficiently broad to encompass this dispute.  However, the clause concludes by stating that “In the event that contractor and owner have not each initialed the arbitration provision above, then it shall be conclusively agreed without a subsequent written agreement by all parties, that neither party agrees to arbitrate and the” (oddly, the clause ends mid-sentence).  The court can easily fill in the missing words to be something akin to “dispute will not be arbitrated” as nothing else makes sense.

The provision here was signed by plaintiffs, but there does not appear to be any initial or signature by the contractor.  While that is likely more in the nature of an oversight than anything else, it remains the case that it is not signed and that the court is directed to assume “conclusively” that there is no agreement to arbitrate.

Of course, if there is a copy somewhere with defendant’s contemporaneous signature, that is different and the court will allow defendant to renew the motion with that evidence.  Alternatively, given that there was no opposition, it could be that plaintiff agrees to arbitrate.  If that is the case, the court is, of course, prepared to accept the agreement.  But absent one of those two things, the motion must be denied.

The court will inquire as to the status of the related case issue.