Judge: Michael E. Whitaker, Case: 24SMCP00169, Date: 2024-06-11 Tentative Ruling

Case Number: 24SMCP00169    Hearing Date: June 11, 2024    Dept: 207






June 11, 2024




Motion to Compel Arbitration


Petitioner Wasser, Cooper & Mandles P.C.






            Petitioner Wasser, Cooperman & Mandles P.C. (“Petitioner”) moves to compel Respondent Doughlas Schrier (“Schrier”) to arbitration regarding a dispute over legal fees incurred in connection with Petitioner’s provision of legal services to Respondent in the matter, “Marriage of Schrier.”  (Verified Petition at ¶ 1; Ex. A.)  The petition is unopposed. 




            “[T]he advantages of arbitration include a presumptively less costly, more expeditious manner of resolving disputes.  It follows a party to a valid arbitration agreement has a contractual right to have its dispute with another party to the contract resolved quickly and inexpensively.”  (Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 99–100 [cleaned up].)  Thus, “on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists.”  (Code Civ. Proc., § 1281.2; see also

EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1320 [the language in section 1281.2 compelling arbitration is mandatory].) The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.  (Code Civ. Proc., § 1281.2, subds. (a)-(c).)   


            “On a petition to compel arbitration, the trial court must first determine whether an agreement to arbitrate the controversy exists.  Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.  The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the respondent's signature.”  (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543-544 [cleaned up].)  The party seeking to compel arbitration must also “plead and prove a prior demand for arbitration and a refusal to arbitrate under the agreement.”  (Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640-641.) 


            And while the moving party on a motion to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, [a] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.  The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.”  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842 [cleaned up]; see also Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [“The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability”].) 




            As a threshold matter, “[a] petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract.”  (Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 532.)  As such, a court’s personal jurisdiction over the respondent requires compliance with the same service rules that apply for service of a summons and complaint in any other lawsuit.  (Frey & Hogan Corp. v. Superior Court in and for City and County of San Francisco (1936) 5 Cal.2d. 401, 403-404.)


            Moreover, due process requires that a respondent be given written notice of the moving and supporting papers at least sixteen court days before the hearing.  (Code Civ. Proc. § 1005, subd. (b).) 


            Here, there is no proof of service indicating that the Petition to Compel arbitration was served on Respondent in a manner that would give the Court personal jurisdiction over Respondent.  Further, there is no proof of service indicating that the notice of the hearing was served on Respondent. 




Because the Court finds no proof of service demonstrating that Respondent was notified about this action or was given proper notice of the hearing, the Court denies without prejudice the Petition to Compel Arbitration. 


Petitioner shall provide notice of the Court’s order and file a proof of service of the same. 





DATED:  June 11, 2024                                                         ___________________________

                                                                                    Michael E. Whitaker

                                                                                    Judge of the Superior Court