This case was last updated from Los Angeles County Superior Courts on 07/02/2020 at 02:34:25 (UTC).

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

Case Summary

On 07/30/2019 MACKLER ECHT ASSOCIATES, INC filed a Contract - Other Contract lawsuit against ELLIOT ZEMEL. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7003

  • Filing Date:

    07/30/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff

MACKLER ECHT + ASSOCIATES INC.

Defendants

HAGER AVERY

HIMEL CAPITAL LLC

ZEMEL ELLIOT

Attorney/Law Firm Details

Plaintiff Attorney

WEBER JEFFERY

Defendant Attorney

ABRAMSON MICHAEL A.

 

Court Documents

Opposition (name extension) - Opposition to Motion to Stay Proceedings

6/16/2020: Opposition (name extension) - Opposition to Motion to Stay Proceedings

Reply (name extension) - Reply DEFENDANTS' REPLY IN SUPPORT OF MOTION TO ST A Y CASE PENDING MEDIATION PER WRITTEN AGREEMENT; REQUEST FOR COSTS OF $3,900.00

6/17/2020: Reply (name extension) - Reply DEFENDANTS' REPLY IN SUPPORT OF MOTION TO ST A Y CASE PENDING MEDIATION PER WRITTEN AGREEMENT; REQUEST FOR COSTS OF $3,900.00

Notice (name extension) - Notice OF WITHDRAW AL OF NOTICE OF MOTION AND MOTION TO STAY CASE PENDING MEDIATION PER WRITTEN AGREEMENT; REQUEST FOR COSTS OF $3,900.00

6/29/2020: Notice (name extension) - Notice OF WITHDRAW AL OF NOTICE OF MOTION AND MOTION TO STAY CASE PENDING MEDIATION PER WRITTEN AGREEMENT; REQUEST FOR COSTS OF $3,900.00

Minute Order - Minute Order (Hearing on Motion for Stay of Proceedings)

6/30/2020: Minute Order - Minute Order (Hearing on Motion for Stay of Proceedings)

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/15/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice (name extension) - Notice OF CONTINUANCE OF HEARING ON MOTION FOR STAY OF PROCEEDINGS

4/23/2020: Notice (name extension) - Notice OF CONTINUANCE OF HEARING ON MOTION FOR STAY OF PROCEEDINGS

Motion for Stay of Proceedings - Motion for Stay of Proceedings

1/27/2020: Motion for Stay of Proceedings - Motion for Stay of Proceedings

Answer - Answer

12/6/2019: Answer - Answer

Summons - Summons on Complaint

9/6/2019: Summons - Summons on Complaint

Complaint - Complaint

7/30/2019: Complaint - Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

7/30/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Civil Case Cover Sheet - Civil Case Cover Sheet

7/30/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

First Amended Standing Order - First Amended Standing Order

7/30/2019: First Amended Standing Order - First Amended Standing Order

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

7/30/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

2 More Documents Available

 

Docket Entries

  • 08/02/2022
  • Hearing08/02/2022 at 10:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 01/26/2021
  • Hearing01/26/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 06/30/2020
  • DocketMinute Order (Hearing on Motion for Stay of Proceedings)

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  • 06/30/2020
  • DocketHearing on Motion for Stay of Proceedings scheduled for 06/30/2020 at 09:00 AM in Spring Street Courthouse at Department 26 Not Held - Taken Off Calendar by Party on 06/30/2020

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  • 06/29/2020
  • DocketNotice OF WITHDRAW AL OF NOTICE OF MOTION AND MOTION TO STAY CASE PENDING MEDIATION PER WRITTEN AGREEMENT; REQUEST FOR COSTS OF $3,900.00; Filed by: ELLIOT ZEMEL (Defendant); AVERY HAGER (Defendant); HIMEL CAPITAL, LLC (Defendant); As to: MACKLER ECHT + ASSOCIATES, INC., (Plaintiff)

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  • 06/17/2020
  • DocketReply DEFENDANTS' REPLY IN SUPPORT OF MOTION TO ST A Y CASE PENDING MEDIATION PER WRITTEN AGREEMENT; REQUEST FOR COSTS OF $3,900.00; Filed by: ELLIOT ZEMEL (Defendant); AVERY HAGER (Defendant); HIMEL CAPITAL, LLC (Defendant)

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  • 06/16/2020
  • DocketOpposition to Motion to Stay Proceedings; Filed by: MACKLER ECHT + ASSOCIATES, INC., (Plaintiff)

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  • 04/23/2020
  • DocketNotice OF CONTINUANCE OF HEARING ON MOTION FOR STAY OF PROCEEDINGS; Filed by: ELLIOT ZEMEL (Defendant); AVERY HAGER (Defendant); HIMEL CAPITAL, LLC (Defendant); As to: MACKLER ECHT + ASSOCIATES, INC., (Plaintiff)

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  • 04/15/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 04/15/2020
  • DocketReset - Court Unavailable, Hearing on Motion for Stay of Proceedings scheduled for 04/22/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Rescheduled by Court was rescheduled to 06/30/2020 09:00 AM

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2 More Docket Entries
  • 12/06/2019
  • DocketAnswer; Filed by: ELLIOT ZEMEL (Defendant); AVERY HAGER (Defendant); HIMEL CAPITAL, LLC (Defendant); As to: MACKLER ECHT + ASSOCIATES, INC., (Plaintiff)

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  • 09/06/2019
  • DocketSummons on Complaint; Issued and Filed by: MACKLER ECHT + ASSOCIATES, INC., (Plaintiff); As to: ELLIOT ZEMEL (Defendant); AVERY HAGER (Defendant); HIMEL CAPITAL, LLC (Defendant)

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  • 07/31/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/02/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 07/31/2019
  • DocketNon-Jury Trial scheduled for 01/26/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 07/31/2019
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 07/30/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 07/30/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 07/30/2019
  • DocketCivil Case Cover Sheet; Filed by: MACKLER ECHT + ASSOCIATES, INC., (Plaintiff); As to: ELLIOT ZEMEL (Defendant); AVERY HAGER (Defendant); HIMEL CAPITAL, LLC (Defendant)

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  • 07/30/2019
  • DocketCivil Case Cover Sheet; Filed by: MACKLER ECHT + ASSOCIATES, INC., (Plaintiff); As to: ELLIOT ZEMEL (Defendant); AVERY HAGER (Defendant); HIMEL CAPITAL, LLC (Defendant)

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  • 07/30/2019
  • DocketComplaint; Filed by: MACKLER ECHT + ASSOCIATES, INC., (Plaintiff); As to: ELLIOT ZEMEL (Defendant); AVERY HAGER (Defendant); HIMEL CAPITAL, LLC (Defendant)

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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.