JUDGE DALILA C. LYONS
DEPARTMENT 20
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Hearing Date: Monday, April 25, 2016
Posted on CourtNet: April 20, 2016
Case Name: ERE Investment III LLC v. Gonzalez
Case No.: BC598875
Motion: Compel Arbitration and Stay Action
Moving Party: Plaintiff ERE Investment Properties III LLC
Responding Party: NONE. UNOPPOSED.
Notice: OK
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Ruling: Plaintiff ERE Investment Properties III LLC?s motion to compel arbitration and stay the action is GRANTED.
This case is stayed pending arbitration. A status conference regarding arbitration is set for September 30, 2016 at 8:30 a.m. in Department 20.
Moving party to give notice and file notice of ruling.
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BACKGROUND
On October 26, 2015 Plaintiff ERE Investment Properties III LLC (?Plaintiff?) filed the Complaint against Defendant Cesar S. Gonzalez (?Defendant?) and Does 1 through 25 for (1) specific performance and (2) breach of contract.
Plaintiff alleges on October 01, 2015 the parties entered into a written contract (the ?Agreement?) in which Plaintiff agreed to buy certain real property (the ?Subject Property?). Compl. Exh. 1. But Plaintiff alleges Defendant withdrew the Subject Property from escrow and Defendant stated he would not close escrow per the instructions.
Plaintiff moves to compel arbitration on the grounds that the Agreement requires arbitration of any dispute between the parties that arises under the Agreement and the instant action should be stayed and transferred to arbitration. No opposition was filed.
ANALYSIS
I. Motion to Compel Arbitration
Under CCP ? 1281.2, ?[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 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, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.?
?If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c) herein, the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.? CCP ? 1281.2.
A. Existence of Arbitration Agreement and Claims Covered by Arbitration Clause
?[T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . .? Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284. ?In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties’ intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.? Weeks v. Crow (1980) 113 Cal.App.3d 350, 353. ?To determine whether a contractual arbitration clause requires arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause.? Titolo v. Cano (2007) 157 Cal.App.4th 310, 316. ?Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.? California Correctional Peace Officers Ass’n v. State (2006) 142 Cal.App.4th 198, 205.
?[A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.? Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284.
Plaintiff argues the Agreement provides expressly that ?any dispute or claim in Law or equity arising between [the buyer and seller] out of the Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration.? Compl. Exh. 1. Plaintiff argues as the dispute is that Defendant breached the Agreement and refused to convey the Subject Property, the matter should be compelled to arbitration.
Defendant does not oppose the instant motion. ?A party who has not timely filed written opposition to a motion?may not be afforded an opportunity to offer oral argument at the hearing.? Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410. ?The failure to file opposition creates an inference that the motion or demurrer is meritorious.? Id. ?In such cases, the court may hear argument limited to a request for a continuance of the hearing in order to afford an opportunity for written opposition.? Id. ?[T]he rule is patently intended to prevent the introduction of legal theories without prior notice to opposing counsel and the court.? Id.
Accordingly, as the Agreement requires arbitration for any dispute arising under the Agreement and the instant action is based on Defendant?s alleged breach of the Agreement, Plaintiff?s motion to compel arbitration and stay the instant action is GRANTED.