MACKLER ECHT + ASSOCIATES, INC., VS ELLIOT ZEMEL, ET AL.

Tentative Rulings

Case Number: 19STLC07003    Hearing Date: June 30, 2020    Dept: 26

Mackler Ech t+ Associates, Inc. v. Himel Capital, LLC, et al.

MOTION TO COMPEL MEDIATION AND STAY PROCEEDINGS

(CCP §§ 1281.2, et seq., 638)

TENTATIVE RULING:

Defendants Himel Capital, Llc, Elliot Zemel, and Avery Hager’S Motion to Compel Meditation and for Stay of Proceedings is DENIED.

ANALYSIS:

On July 30, 2019, Plaintiff Mackler Ech t+ Associates, Inc. (“Plaintiff”) filed this action against Defendants Himel Capital, Llc, Elliot Zemel, and Avery Hager (“Defendants”). Defendants filed the instant Motion to Compel Mediation and Stay Action on January 27, 2020. Defendants filed an opposition on June 16, 2020 and Plaintiff replied on June 17, 2020.

Legal Standard

“On 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.” (CCP §§ 1281.2(a)-(b).) As with other types of agreements, “[t]he failure of the [party] to carefully read the agreement and the amendment is not a reason to refuse to enforce the arbitration provisions.” (Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1115.) “California law, ‘like [federal law], reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims.’” (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 31.) If the court orders arbitration, then the court shall stay the action until arbitration is completed. (See CCP § 1281.4.)

Discussion

Defendants bring the instant Motion to Compel Mediation and Stay Action pursuant to Code of Civil Procedure section 1281. This statutory authority, however, only pertains to agreements to arbitrate: “On 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 . . . .” (Code Civ. Proc., § 1281.2.) Defendant offers no binding authority that the Court can compel another party to mediate a dispute. The two cases to which Defendants cite are non-binding federal cases. (Motion, p. 4:13-17.) Furthermore, binding California authority has expressly held “that a trial court exceeds its authority by mandating that the parties attend and pay for private mediation over their objection.” (Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536, 541.) While Jeld-Wen, Inc. did not involve a contractual mediation provision, the Court of Appeals repeately cited to the voluntary nature of mediation in its reasoning. (Ibid.)

Nor do the cases in Defendants’ reply demonstrate that the Court has the authority to compel Plaintiff to mediation. The first case involved an action for breach of an agreement to negotiate, which the Court of Appeals found to be a valid cause of action. (Copeland v. Baskin Robbins U.S.A. (2002) 96 Cal.App.4th 1251, 1257-1258.) The second case involved enforcement of a contract provision requiring the parties to meet and come to mutual agreement, and if unable to do so, to submit the matter to arbitration, which the Court of Appeals found to be sufficiently definite. (Herman v. County of Los Angeles (2002) 98 Cal.App.4th 484, 488.) Both of these actions were brought to enforce the contractual provisions to which the parties agreed. Here, there is no action to enforce the mediation provision of the contract, which must necessarily prove the elements of a claim for breach of contract, including damages.

As Defendants have not demonstrated that the Court has authority to compel Plainitff to mediate the action, the Motion to Compel Meditation and for Stay of Proceedings is DENIED.

Court clerk to give notice.