ALLEN SUPPLY VS BRADLEY P KESSEL, ET AL.

Tentative Rulings

Case Number: 20STLC04222    Hearing Date: September 23, 2020    Dept: 25

HEARING DATE:   Wed., September 23, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Allen Supply v. Kessel, et al. COMPL. FILED: 05-15-20

CASE NUMBER: 20STLC04222 DISC. C/O: 10-13-21

PROCEEDINGS:     MOTION TO STAY ALL PROCEEDINGS PENDING CONTRACTUAL ARBITRATION  

MOVING PARTY:   Plaintiff Allen Supply, in pro per

RESP. PARTY: None

MOTION TO STAY PROCEEDINGS  

(CCP § 1281.4)

TENTATIVE RULING:

Plaintiff Allen Supply’s Motion for Stay is CONTINUED TO NOV 10, 2020 AT 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of September 21, 2020  [   ] Late [X] None

REPLY: None filed as of September 21, 2020  [   ] Late [X] None

ANALYSIS:

1. Background

On May 15, 2020, Plaintiff Allen Supply (“Plaintiff”) filed an action for foreclosure of a mechanic’s lien against Defendants Bradley P. Kessel and Linda Kessel (collectively, “Defendants”).

On July 6, 2020, Plaintiff filed the instant Motion to Stay all Proceedings Pending Contractual Arbitration (the “Motion”). To date, no opposition has been filed.

The Court scheduled the Motion for hearing for September 23, 2020 at 10:00 a.m. and ordered Plaintiff to give notice of the scheduled hearing (7/8/20 Minute Order.) To date, no proof of service has been filed demonstrating Plaintiff gave Defendants such notice.

1. Legal Standard

“If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.

If an application has been made to a court of competent jurisdiction, whether in this State or not, for an order to arbitrate a controversy which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc., § 1281.4.) (Italics added.)

1. Discussion

As an initial matter, the Court notes that Plaintiff did not file a proof of service demonstrating it gave Defendants notice of the Court’s order scheduling the Motion for hearing for September 23, 2020. In addition, Plaintiff filed this action as “Allen Supply, a sole proprietorship.” However, this is improper. A sole proprietorship is not a legal entity separate from its individual owner. (Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1449.) Plaintiff must bring this action in the owner’s name, doing business as Allen Supply.

In addition, Plaintiff bases this Motion on a contract between Dave Bischoff, Inc. and “Brad” Kessel. (Mot., p. 1:24-28, Exh. A.) However, Plaintiff has not attached or filed an assignment demonstrating the rights to the contract were assigned to Plaintiff. Thus, it is unclear whether Plaintiff has standing to bring this Motion.

Furthermore, Plaintiff requests that the Court grant the Motion to stay the lien foreclosure proceedings “and otherwise not hinder block or delay the existing arbitration proceedings, in accordance with the contract’s binding arbitration agreement per CCP § 1281.2 [and] CCP 1281.4…” (Mot., p. 3:23-26.) However, as noted above, Section 1281.4 requires that a court orders arbitration, or that an application for arbitration be pending, before an order staying proceedings can be issued. (Code Civ. Proc., § 1281.4.) Here, Plaintiff has not made an application to this court to compel arbitration and the Court is not in possession of any evidence demonstrating arbitration has been ordered by another court.

Thus, Plaintiff must file and serve supplemental papers correcting the issues noted above. 

1. Conclusion & Order

For the foregoing reasons, Plaintiff Allen Supply’s Motion for Stay is CONTINUED TO NOV 10, 2020 AT 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.