Judge: Stephen I. Goorvitch, Case: 22STCV20245, Date: 2022-10-31 Tentative Ruling

Case Number: 22STCV20245    Hearing Date: October 31, 2022    Dept: 39

Sajad Ghafourian v. JKV SPV, LLC, et al.

Case No. 22STCV20245

Motion to Compel Arbitration

            Plaintiff Sajad Ghafourian (“Plaintiff”) filed this action against Defendants, from whom he purchased a property, located at 4107 West 59th Place in Los Angeles, California 90043.  Plaintiff alleges that there were “concealed defects such as roof leakage and foundational damage.”  (Complaint, ¶ 10.)  The standard purchase agreement contains an arbitration provision.  (Declaration of John Kralik, Exh. #1, p. 10, ¶ 31.B.)  Defendant moves to compel arbitration in this case.

The moving party on a petition to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while 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, internal quotations and citations omitted.)

The contract has a clear arbitration provision: “The Parties agree that any dispute or claim in Law or equity arising between them our of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration.”  (Declaration of John Kralik, Exh. #1, p. 10, ¶ 31.B.)  There are certain exclusions, none of which apply to this case.  (Id., p. 10, ¶ 31.C.)  Plaintiff argues that the arbitration agreement is “nonbinding” because the mediation clause references either an “arbitration” or a “court action.”  Plaintiff’s argument is nonsensical.  The agreement is clear and unambiguous.  The mere fact that the mediation provision references a “court action” does not invalidate the clear language of the arbitration provision.  Indeed, sometimes a court action is necessary in order to obtain an order compelling arbitration, which is why the two clauses are not inconsistent. 

            Plaintiff argues that Defendant Upstart Residential Inc. is not required to participate in mediation because the arbitration agreement states: “Brokers shall not be obligated or compelled to mediate or arbitrate unless they agree to do so in writing.”  (Id., p. 10, ¶ 31.C(2).)  Defendant Upstart Residential, Inc. is one of the moving parties on this motion, which constitutes its consent in writing to participate in a mediation and arbitration.

            The Court has considered Plaintiff’s remaining arguments and finds none to be persuasive.  Therefore, the Court orders as follows:

            1.         Defendants’ motion to compel arbitration is granted.

            2.         The parties shall meet-and-confer and schedule an arbitration forthwith.

            3.         Pursuant to the parties’ agreement, they shall participate in a mediation at least 30 days before the arbitration hearing.  If the parties cannot agree on the date for the mediation, it shall occur exactly 30 days before the arbitration hearing unless that day is a weekend or holiday, in which case it shall occur on the first court day after the 30-day deadline.

            4.         The Court takes the case management conference off-calendar.  The Court shall hold an Order to Show Cause why this case should not be dismissed following arbitration.  The OSC hearing shall be held on April 3, 2022, at 8:30 a.m.  The Court provides notice that if Plaintiff’s counsel does not appear, either remotely or in-person, the Court will assume this case has been resolved by way or arbitration or settlement and will dismiss the case with prejudice. 

            5.         Defendants’ counsel shall provide notice and file proof of such with the Court.