Judge: Virginia Keeny, Case: 22STCV02073, Date: 2025-05-02 Tentative Ruling

Case Number: 22STCV02073    Hearing Date: May 2, 2025    Dept: 45

8551 VENICE, LLC vs DAVID MARVISI

MOTION TO COMPEL ARBITRATION

Date of Hearing:        May 2, 2025                           Trial Date:       September 29, 2025

Department:              45                                            Case No.:        22STCV02073

Moving Party:            Defendant David Marvisi

Responding Party:     Plaintiff 8551 Venice LLC

BACKGROUND

On January 18, 2022, Plaintiff 8551 Venice, LLC filed a complaint against Defendant David Marvisi for breach of contract and money had and received. Plaintiff filed a first amended complaint on October 6, 2023.

Default was entered April 7, 2023. Default Judgment was entered January 31, 2024. The parties stipulated to set aside the default and default judgment on June 12, 2024.

[Tentative] Ruling

Defendant David Marvisi’s Motion to Compel Arbitration is DENIED.

DISCUSSION

Defendant David Marvisi moves this court for an order compelling Plaintiff 8551 Venice LLC to arbitrate its claims against Defendant Marvisi asserted in their lawsuit.

Code of Civil Procedure section 1281.2 provides that a court shall order arbitration upon petition of a party to an arbitration agreement if the court determines an agreement to arbitrate the controversy exists, unless it determines that the right to compel arbitration has been waived by the petitioner. (CCP § 1281.2(a); Mercury Insurance Group v. Superior Court (1998) 19 Cal.4th 332, 342.) “The question of waiver is one of fact.” (Augusta v. Keehn & Associates (2011) 193 Cal.App.4th 331, 337 (quoting Berman v. Health Net (2000) 80 Cal.App.4th 1359, 1363-64).) “There is no single test for waiver of the right to compel arbitration, but waiver may be found where the party seeking arbitration has (1) previously taken steps inconsistent with an intent to invoke arbitration, (2) unreasonably delayed in seeking arbitration, or (3) acted in bad faith or with willful misconduct.” (Id.) “While engaging in litigation of the matter may be inconsistent with an intent to invoke arbitration, ‘the party who seeks to establish waiver must show that some prejudice has resulted from the other party’s delay in seeking arbitration.’” (Id.) Factors to consider in determining waiver include: “(1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or prejudiced’ the opposing party.’” (Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 (quoting Sobremonte v. Superior Court (1998) 61 CalApp.4th 980, 992).)  

Defendant argues Plaintiff brought this court action in violation of its agreement to arbitrate claims against Marvisi. Under the terms of the Lease Agreement, Defendant asserts Plaintiff and Marvisi agreed to delegate exclusive authority to the arbitrator to decide issues related to enforceability and arbitrability.

Plaintiff opposes the motion on the grounds it is barred by both express and implied waiver. The court agrees. As noted by Plaintiff, Defendant had knowledge of the arbitration agreement when they entered the Lease Agreement in 2018; Defendant received a copy of the arbitration agreement when served with the complaint in 2023; Defendant filed an answer instead of a motion to compel arbitration when the parties stipulated to set aside the default; Defendant initiated discovery; Defendant requested a non-jury trial in his CMC Statement and at the 05/23/24 CMC; and Defendant responded to Plaintiff’s discovery. Plaintiff also notes that 24 months after having been served with the complaint, 18 months after having been served with the FAC, and 13 months after filing its Answer, Defendant finally moved to compel arbitration. However, Defendant provides no explanation for his delay. These facts are almost identical to Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562 where the court found clear and convincing evidence that the defendant was aware of its right to compel arbitration, filed an answer, propounded discovery, indicated a preference for a jury trial, engaged in discovery and waited 13 months after the complaint was filed to enforce its right to compel arbitration.

Accordingly, Defendant’s Motion to Compel Arbitration is DENIED.