This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 04:59:35 (UTC).

GREG MOORADIAN ET AL VS ERLA DOGG INGJALDSDOTTIR ET AL

Case Summary

On 05/26/2017 GREG MOORADIAN filed a Contract - Other Contract lawsuit against ERLA DOGG INGJALDSDOTTIR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOWARD L. HALM and ROBERT B. BROADBELT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2798

  • Filing Date:

    05/26/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOWARD L. HALM

ROBERT B. BROADBELT

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

MOORADIAN GREG

MOORADIAN DEBRA A.

ROES 1-50

Defendants, Respondents and Cross Plaintiffs

MINARC INC.

MNM MOD CORP.

DOGG ERLA

MNMMOD BUILDING SOLUTIONS

MNMMOD

INGJALDSDOTTIR ERLA DOGG

THOPRSTEINSSON TRYGGVI

STAYER MIKE

STAYER MICHAEL THEODORE

SURETEC INDEMNITY COMPANY

HOWE CARL WILLIAM

CORE CONSTRUCTION AND DEVELOPMENT

HOWE CARL W.

C.W. HOWE PARTNERS INC.

DOES 1-100 INCLUSIVE

Respondents, Defendants and Cross Plaintiffs

HOWE CARL WILLIAM

C.W. HOWE PARTNERS INC.

Not Classified By Court

TEST PARTY FOR TRUST CONVERSION

PITRE RANDALL J

8 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

PITRE RANDALL J. ESQ.

Defendant and Respondent Attorneys

GASCOU HOPKINS LLP

ROSENSTEIN MICHAEL H. ESQ.

FARIVAR MEHRDAD ESQ.

HOPKINS RONALD WARREN

ROSENSTEIN MICHAEL HARRIS ESQ.

GASCOU CHRISTIAN JEAN

Other Attorneys

PITRE RANDALL JOHN ESQ.

 

Court Documents

MEMORANDUM OF POINTS AND AUTHORITIES FILED BY CROSS-DEFENDANTS' IN SUPPORT OF SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTUION 425.16 (ANTI-SLAPP)

2/22/2018: MEMORANDUM OF POINTS AND AUTHORITIES FILED BY CROSS-DEFENDANTS' IN SUPPORT OF SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTUION 425.16 (ANTI-SLAPP)

DECLARATIONS OF DEBRA A. MOORADIAN, GREG MOORADIAN AND RANDALL J. PITRE IN SUPPORT OF SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16 (ANTI-SLAPP)

2/22/2018: DECLARATIONS OF DEBRA A. MOORADIAN, GREG MOORADIAN AND RANDALL J. PITRE IN SUPPORT OF SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16 (ANTI-SLAPP)

NOTICE OF MOTION AND MOTION BY CROSS-DEFENDANTS' TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16 (ANTI-SLAPP)

2/22/2018: NOTICE OF MOTION AND MOTION BY CROSS-DEFENDANTS' TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16 (ANTI-SLAPP)

Unknown

3/6/2018: Unknown

Unknown

3/12/2018: Unknown

Unknown

3/13/2018: Unknown

Unknown

3/20/2018: Unknown

STIPULATION RE STAY OF PROCEEDINGS AS AGAINST DEFENDANT SURETEC INDEMNITY COMPANY AND ORDER ON STIPULATION FOR STAY

3/21/2018: STIPULATION RE STAY OF PROCEEDINGS AS AGAINST DEFENDANT SURETEC INDEMNITY COMPANY AND ORDER ON STIPULATION FOR STAY

Minute Order

3/21/2018: Minute Order

DECLARATION OF CARL HOWE IN SUPPORT OF CARL HOWE'S AND C.W. HOWE PARTNERS, INC.'S OPPOSITION FO PLAINTIFFS' SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16

4/5/2018: DECLARATION OF CARL HOWE IN SUPPORT OF CARL HOWE'S AND C.W. HOWE PARTNERS, INC.'S OPPOSITION FO PLAINTIFFS' SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16

CARL HOWE'S AND C.W. HOWE PARTNERS, INC.'S OPPOSITION TO PLAINTIFFS' SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16; DECLARATION OF CHRISTOPHER J. MENJOU

4/5/2018: CARL HOWE'S AND C.W. HOWE PARTNERS, INC.'S OPPOSITION TO PLAINTIFFS' SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16; DECLARATION OF CHRISTOPHER J. MENJOU

REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP ? 425.16 (ANTI-SLAPP)

4/11/2018: REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP ? 425.16 (ANTI-SLAPP)

SUPPLEMENTAL DECLARATION OF CHRISTOPHER MENJOU IN SUPPORT OF CARL HOWE'S AND C.W. HOWE PARTNERS, INC.'S OPPOSITION TO PLAINTIFFS' SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.1

4/13/2018: SUPPLEMENTAL DECLARATION OF CHRISTOPHER MENJOU IN SUPPORT OF CARL HOWE'S AND C.W. HOWE PARTNERS, INC.'S OPPOSITION TO PLAINTIFFS' SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.1

Minute Order

4/18/2018: Minute Order

ORDER RE: CROSS-DEFENDANTS' MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16 (ANTI-SLAPP)

4/18/2018: ORDER RE: CROSS-DEFENDANTS' MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP SECTION 425.16 (ANTI-SLAPP)

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

4/18/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

DEFENDANTS C.W. HOWE PARTNERS, TNC. AND CARL HOWE?S NOTICE OF ENTRY OF ORDER RE: PLAINTIFFS MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP 425.16 (ANTI-SLAPP)

4/26/2018: DEFENDANTS C.W. HOWE PARTNERS, TNC. AND CARL HOWE?S NOTICE OF ENTRY OF ORDER RE: PLAINTIFFS MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CCP 425.16 (ANTI-SLAPP)

NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE) (APPELLATE)

6/11/2018: NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE) (APPELLATE)

71 More Documents Available

 

Docket Entries

  • 05/02/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Case Management Conference - Held - Continued

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  • 05/02/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Status Conference (reArbitration) - Held - Continued

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  • 05/02/2019
  • Minute Order ( (Case Management Conference; Status Conference re: Arbitration)); Filed by Clerk

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  • 04/23/2019
  • Status Report (BY PLAINTIFF re CASE MANAGEMENT CONFERENCE); Filed by Debra A. Mooradian (Legacy Party); Greg Mooradian (Legacy Party)

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  • 04/22/2019
  • Case Management Statement; Filed by Suretec Indemnity Company (Defendant)

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  • 02/13/2019
  • Notice of Change of Address or Other Contact Information; Filed by Mike Stayer (Legacy Party)

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  • 11/15/2018
  • Notice of Ruling (from November 2, 2018 Case Management Conference); Filed by Debra A. Mooradian (Legacy Party); Greg Mooradian (Legacy Party)

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  • 11/02/2018
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Case Management Conference - Held - Continued

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  • 11/02/2018
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Status Conference (ReArbitration) - Held - Continued

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  • 11/02/2018
  • Minute Order ((Case Management Conference; Status Conference Re: Arbitration;)); Filed by Clerk

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144 More Docket Entries
  • 06/30/2017
  • GENERAL DENIAL AND ANSWER OF SURETEC INDEMNITY COMPANY TO PLAINTIFF'S COMPLAINT

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  • 06/30/2017
  • General Denial; Filed by Suretec Indemnity Company (Defendant)

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  • 06/05/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 06/05/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 06/05/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/05/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 05/26/2017
  • COMPLAINT FOR DAMAGES FOR FRAUD, NEGLIGENT MISREPRESENTA11ON, AND NEGLIGENCE, FOR RESTITUTION, FOR INJUNCTIVE RELIEF, AND FOR RECOVERY AGAINST CONTRACTOR'S LICENSE BOND

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  • 05/26/2017
  • Complaint; Filed by null

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  • 05/26/2017
  • DECLARATION OF COUNSEL RE CERTIFYING COMPLIANCE WITH CCP 411.35

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  • 05/26/2017
  • SUMMONS

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Tentative Rulings

b'

Case Number: BC662798 Hearing Date: December 16, 2021 Dept: 53

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Superior Court of California

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County of Los Angeles – Central District

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Department\r\n53

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greg mooradian,\r\n et al.;

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\r\n \r\n Plaintiffs,

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vs.

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ERLA DOGG INGJALDSDOTTIR, aka eRLA dogg, et al.;

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Case\r\n No.:

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BC662798

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Hearing\r\n Date:

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December\r\n 16, 2021

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Time:

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[TENTATIVE]\r\n Order RE:

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motion for order lifting stay of proceedings\r\n and return of this action to the civil active list

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MOVING PARTIES: Plaintiffs Greg Mooradian and Debra\r\nA. Mooradian

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RESPONDING PARTIES: Defendants Erla Dogg Ingjaldsdottir, Tryggvi\r\nThorsteinsson, Minarc, Inc., and MNM Mod Corp.

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Motion for Order Lifting Stay of\r\nProceedings and Return of this Action to the Civil Active List

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The court considered the moving, opposition, and\r\nreply papers.

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BACKGROUND

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On May 26, 2017, plaintiffs Greg Mooradian and Debra A. Mooradian (collectively,\r\n“Plaintiffs”) filed this lawsuit against defendants Erla Dogg Ingjaldsdottir\r\naka Erla Dogg (“Ingjaldsdottir”), Tryggvi Thorsteinsson (“Thorsteinsson”),\r\nMinarc, Inc. (“Minarc”), MNM Mod Corp. aka MNMmod aka mnmMOD, and doing\r\nbusiness as MNMmod Building Solutions (“MNM”), C.W. Howe Partners, Inc. (“Howe\r\nInc.”), Carl William Howe aka Carl W. Howe (“Howe”), Core Construction and\r\nDevelopment (“Core”), Michael Theodore Stayer aka Mike Stayer (“Stayer”), and\r\nSuretec Indemnity Company (“Suretec”).

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The Complaint alleges the following causes of action (including some\r\nthat are the same, but brought against different defendants): (1) fraud – intentional misrepresentation, (2)\r\nfraud – negligent misrepresentation re Qualifications of Core and re\r\nSupervision of Construction by Unlicensed Persons, (3) fraud – intentional\r\nmisrepresentation, (4) fraud – intentional misrepresentation re expanded\r\npolystyrene (“EPS”) panels, (5) fraud – intentional misrepresentation re EPS panels.\r\n(6) fraud – negligent misrepresentation re Minarc and EPS panels, (7)\r\nnegligence, (8) negligence, (9) negligence, (10) restitution from unlicensed\r\ncontractors, (11) restitution and injunctive relief for unfair business\r\npractices, (12) restitution based on unfair business practices, and (13) claim\r\nagainst contractor’s license bond.

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The Complaint alleges the following. \r\nPlaintiffs own the real property commonly known as 457 N. Citrus Avenue,\r\nLos Angeles, CA 90036 (the “Mooradian Property”). (Compl., ¶ 16.) In 2013, Plaintiffs contemplated using\r\nrenowned residential architects to renovate and/or reconstruct their then\r\nexisting home on the Mooradian Property. \r\n(Compl., ¶ 25.) Believing that defendants\r\nIngjaldsdottir and Thorsteinsson were the “award-winning architects” behind a\r\nhouse Plaintiffs admired in a book, Plaintiffs met with those defendants on\r\nFebruary 27, 2014, to discuss constructing a new structure on the Mooradian\r\nProperty. (Compl., ¶¶ 26-29.)

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Ingjaldsdottir and Thorsteinsson, acting through defendant Minarc,\r\noffered to construct a new two-story steel framed structure (the “Mooradian\r\nResidence”) on the Mooradian Property. \r\n(Compl., ¶ 31.) Plaintiffs entered\r\ninto a contract for the construction of the Mooradian Residence with those\r\nthree defendants. (Compl., ¶¶ 31, 33;\r\nEx. 2.) Defendants Howe and Howe Inc.\r\nwere to provide engineering services for the construction. (Compl., ¶¶ 36-37.) MNM was responsible for manufacturing metal\r\nframed EPS panels for the Mooradian Residence. \r\n(Compl., ¶¶ 27, 32(a).) Defendants\r\nCore and Stayer were responsible for constructing the Mooradian Residence. (Compl., ¶ 39.) Defendant Suretec issued a contractor’s\r\nsurety bond for the benefit of any person damaged by Core or Stayer’s\r\nviolations of Chapter 9, Division 3 of the Business and Professions Code. (Compl., ¶ 164.)

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Core commenced construction of the Mooradian residence after obtaining\r\na building permit in March 2015. \r\n(Compl., ¶ 45.) However, defendants\r\nIngjaldsdottir and Thorsteinsson needed to be licensed architects with the\r\nCalifornia Architects Board to enter into the transactions that they entered\r\ninto with the Plaintiffs. (Compl., ¶\r\n18.) Therefore, after discovering in\r\nApril 2016 that those two defendants were not licensed architects in the State\r\nof California, Plaintiffs terminated their contract with them. (Compl., ¶ 46.) Plaintiffs subsequently dismissed Core from\r\nthe construction of the Mooradian Residence and hired a completion contractor\r\nto complete the work contracted to Core and Stayer. (Compl., ¶ 47.)

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Plaintiffs, Ingjaldsdottir, Thorsteinsson, Minarc, MNM, Core, and\r\nStayer stipulated to arbitrate their claims arising from or relating to the\r\nagreements governing the transactions alleged in the Complaint. (Stipulation Re Arbitration and Order Thereon,\r\nfiled September 12, 2017 (“Stipulation and Order”), p. 2:18-24; Stipulation Re\r\nArbitration and Order Thereon, filed October 19, 2017, p. 2:15-21.) Pursuant to the September 19, 2017 minute\r\norder and the stipulations and orders filed on September 12, 2017 and October\r\n19, 2017, the court (Judge Howard L. Halm) ordered arbitration and a stay of\r\nthis action as to the defendants who were parties to the stipulations and\r\norders pending completion of the arbitration. \r\nPursuant to a stipulation and order filed March 1, 2018, the court also\r\nordered this action stayed as against defendant SureTec Indemnity Company\r\npending completion of the arbitration.

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On or about November 6, 2017, Plaintiffs commenced arbitration against\r\nall defendants (except Howe, Howe Inc., and Suretec) pursuant to the\r\nStipulation and Order. (Pitre Decl.,\r\nfiled July 8, 2020, ¶ 2.) However, on\r\nNovember 13, 2018, the arbitration was suspended for non-payment of fees because\r\ndefendants Core and Stayer (the “Core Respondents”) failed to pay fees\r\nassociated with their request for joinder. \r\n(Motion, p. 6:14-15; Pitre Decl., Ex. 2, p. 10.) The AAA reinstated the arbitration after\r\npayment of those fees, but suspended the arbitration again on March 12, 2019, because\r\nthe Core Respondents and the respondents they had joined did not pay certain fees. (Pitre Decl., Ex. 2, pp. 17-18; 25.) On September 20, 2019, the AAA terminated the\r\narbitration because a total of $1,600 of fees remained unpaid. (Pitre Decl., Ex. 2, pp. 28-31.)

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Plaintiffs now move for an order lifting the stay and to set the case\r\nfor trial because Plaintiffs contend that the arbitration “has been had”\r\npursuant to the Stipulation and Order. Defendants\r\nIngjaldsdottir, Thorsteinsson, Minarc, and MNM (collectively, “Defendants”)\r\noppose the motion.

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LEGAL STANDARD

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Code of Civil Procedure\r\nsection 1281.4 provides: “If a court of\r\ncompetent jurisdiction, whether in this State or not, has ordered arbitration\r\nof a controversy which is an issue involved in an action or proceeding pending\r\nbefore a court of this State, the court in which such action or proceeding is\r\npending shall, upon motion of a party to such action or proceeding, stay the\r\naction or proceeding until an arbitration is had in accordance with the order\r\nto arbitrate or until such earlier time as the court specifies.”

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DISCUSSION

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Plaintiffs argue that lifting the\r\nstay is proper because the arbitration “‘has been had in accordance with the\r\nterms of the agreement.’” (Motion, p.\r\n8:11-13.)

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In opposition, Defendants argue that\r\nPlaintiffs have not “had” an arbitration with them because (1) Defendants fully\r\ncomplied with their arbitration obligations, including paying all required fees\r\nand (2) “the arbitration was terminated due to non-payment of fees by parties\r\nthat did not have arbitration agreements with Plaintiffs and had not been\r\nordered into arbitration by this court.” \r\n(Opposition, p. 2:2-9.)

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Both the California Arbitration Act (Code Civ. Proc., § 1280 et seq.\r\n(CAA)) and the Federal Arbitration Act (9 U.S.C. § 1 et seq. (FAA)), “are\r\ndriven by a strong public policy of enforcing arbitration agreements.” (Weiler v. Marcus & Millichap Real\r\nEstate Investment Services, Inc. (2018) 22 Cal.App.5th 970, 979 [“Weiler”].) “Thus, a court generally must compel\r\narbitration in accordance with the agreement when requested by one of the\r\nparties. (Code Civ. Proc., § 1281.2; 9\r\nU.S.C. § 2.)” (Ibid.) “However, the court action does not disappear\r\nand it is effectively held in abeyance until the arbitration ‘has been had in\r\naccordance with the terms of the agreement.’ \r\n(9 U.S.C. § 3; compare Code Civ. Proc., § 1281.4.) [Footnote omitted].” (Ibid.)

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In Weiler, the California Court of Appeal found that the Ninth\r\nCircuit Court of Appeal’s holding in Tillman v. Tillman (9th Cir. 2016)\r\n825 F.3d 1069 (“Tillman”) as to what it means for an arbitration “to be\r\nhad” under the FAA also applies to the similar language used in the CAA (Code\r\nCiv. Proc., § 1281.4). (Weiler, supra,\r\n22 Cal.App.5th at pp. 979, 980 [“What it means for an FAA arbitration ‘to be\r\nhad’ was considered under similar circumstances by the Ninth Circuit Court of\r\nAppeals in [Tillman];” “We find\r\nthe Ninth Circuit\'s reasoning in Tillman to be sound and agree its\r\nconclusion should apply equally to this case under the CAA”].) Therefore, the standard of determining whether\r\nan arbitration “has been had” is the same under the FAA and the CAA.

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In Tillman, the Ninth Circuit concluded that the parties’ arbitration\r\nhad been had for the following reasons. \r\n(Tillman, supra, 825 F.3d at p. 1074.) “The retainer agreement between [the parties]\r\nexplicitly incorporated the AAA’s rules.” \r\n(Ibid.) “Rule R-53 allows\r\nthe AAA to prescribe fees and gives it the sole discretion to reduce fees in\r\nthe event of hardship. [Citation.] Rule R-56 allows the AAA to require the\r\nparties to pay deposits in advance in ‘such sums of money as it deems\r\nnecessary.’ [Citation.] Rule R-57 states that in the event of\r\nnonpayment, the arbitrator may ‘limit[ ] a party’s ability to assert or pursue\r\ntheir claim,’ and ‘may order the suspension of the arbitration.’ [Citation.] \r\nIf such suspension has occurred and the parties still fail to make full\r\ndeposits within a designated time period, the arbitrator ‘may terminate the\r\nproceedings.’ [Citation].” (Ibid.) Because the arbitrator followed all those steps\r\nin terminating the parties’ arbitration, the Ninth Circuit concluded that the arbitration\r\nhad been had pursuant to the parties’ agreement. (Id. at 1074.)

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Defendants argue that Tillman is distinguishable from this case\r\nbecause, in Tillman, a party to the arbitration agreement failed to pay\r\nher portion of the arbitration costs but, in this case, Defendants have paid\r\ntheir fees. (Opposition, p.\r\n7:12-14.)

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However, the Ninth Circuit in Tillman did not base its holding\r\non the identity of the non-paying parties. \r\nInstead, as discussed above, it looked to the parties’ arbitration agreement\r\nto determine whether the arbitration had been had in accordance with the terms\r\nof that agreement. Upon finding that the\r\nparties’ agreement incorporated the AAA rules, and all AAA rules were followed in\r\nterminating the parties’ arbitration, the Court found that the parties’\r\narbitration had been had. (Tillman,\r\nsupra, 825 F.3d at p. 1074.)

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Here, the court finds that the parties’ arbitration has been had\r\npursuant to the Stipulation and Order, for the following reasons.

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First, like in Tillman, the Stipulation and Order incorporated\r\nthe AAA rules. The parties agreed that\r\n“all claims, counterclaims and defenses that any party to this Stipulation re\r\nArbitration has against any other party or parties to this Stipulation re\r\nArbitration, jointly or severally, arising from or relating to the agreements\r\nattached hereto as Exhibits A, B, and C . . . shall be resolved through binding\r\narbitration conducted as a single proceeding before the American Arbitration\r\nAssociation in accordance with its Construction Industry Arbitration Rules\r\n[“CIAR”].” (Stipulation and Order, ¶ 1,\r\np. 2:18-24.)

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Second, the AAA followed its rules (the CIAR) in terminating the\r\nparties’ arbitration. According to the\r\nCIAR, “[t]he AAA may require the parties to deposit in advance of any hearing\r\nsuch sums of money as it deems necessary to cover the expense of the\r\narbitration, including the arbitrator’s fee, if any . . . .” (Am. Arbitration Ass’n, Construction\r\nIndustry Arbitration Rules and Mediation Procedures (2015); Opposition,\r\nfiled July 22, 2020 (“Defendants’ Exhibits), Ex. E, p. 1, rule R-58(a).) “If arbitrator compensation or administrative\r\ncharges have not been paid in full, the AAA may so inform the parties in order\r\nthat one of them may advance the required payment.” (Defendants’ Exhibits, Ex. E, p. 1, rule\r\nR-59(a).) “Upon receipt of information\r\nfrom the AAA that full payments have not been received, the arbitrator, on the\r\narbitrator’s own initiative, may order the suspension of the arbitration. If no arbitrator has yet been appointed, the\r\nAAA may suspend the proceedings.” \r\n(Defendants’ Exhibits, Ex. E, p. 2, rule R-59(c).) “If the arbitrator’s compensation or\r\nadministrative fees remain unpaid after a determination to suspend an\r\narbitration due to nonpayment, the arbitrator has the authority to terminate\r\nthe proceedings.” (Ex. E, p. 2, rule\r\nR-59(d).)

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In its letters dated February 4 and February 20, 2019, the AAA\r\ninformed the parties that some participants had not paid their arbitrator\r\ncompensation deposits. (Pitre Decl., Ex.\r\nC, Ex. 2, pp. 13-16.) The AAA stated\r\nthat “any party make may make the deposits necessary to avoid suspension,” and\r\nthat the Arbitrator has set a suspension deadline of March 8, 2019, should those\r\ndeposits remain unpaid. (Pitre Decl.,\r\nEx. 2, pp. 14; 16.) In its letters dated\r\nMarch 12, April 16, May 9, June 13, August 13, and September 16, 2019, the AAA\r\n(1) informed the parties that the arbitration proceeding was suspended because\r\nof unpaid deposits, (2) warned that the arbitration proceeding will be\r\nterminated if the deposits were not brought current by September 13, 2019, and\r\n(3) again stated that any party can pay the balance. (Pitre Decl., Ex. 2, pp. 17-29.) On September 20, 2019, the AAA terminated the\r\narbitration because some arbitrator compensation deposits remained unpaid. (Pitre Decl., Ex. 2, p. 31.)

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The court finds that, because the AAA followed the CIAR in terminating\r\nthe parties’ arbitration, the arbitration has been “had” in accordance with the\r\nStipulation and Order. (Code Civ. Proc.,\r\n§ 1281.4.)

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Defendants’ reliance on Lifescan, Inc. v. Premier Diabetic\r\nServices, Inc. (9th Cir. 2004) 363 F.3d 1010 (“Lifescan”) is\r\nmisplaced because Lifescan supports Plaintiffs’ argument that the\r\narbitration has been had. Indeed, the\r\nNinth Circuit in Tillman relied on Lifescan in reaching its\r\ndecision.

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In Lifescan, the AAA arbitrators gave Lifescan, Inc.\r\n(“Lifescan”) the option of advancing the fees owed by Premier Diabetic\r\nServices, Inc. (“Premier”), so that the final arbitration hearings could\r\nproceed. (Id. at 1011.) Lifescan refused and instead requested that\r\nthe arbitration go forward with Premier being barred from presenting\r\nevidence. (Ibid.) The AAA refused to proceed without Premier\r\nand suspended the proceedings. (Ibid.) “Lifescan petitioned the district court to\r\ncompel arbitration and order Premier to pay its pro-rata share of the fees,”\r\nand the district court did so. (Ibid.) The Ninth Circuit reversed and remanded the\r\ncase, holding that the district court erred in granting Lifescan’s petition to\r\ncompel arbitration and ordering Premier to pay its pro-rata share of the\r\nfees. (Id. at 1013.)

\r\n\r\n

Faithful to Section 4 of the FAA, the Ninth Circuit in Lifescan\r\nfirst looked to the agreement between Premier and Lifescan and found that the\r\nparties had incorporated the AAA rules. (Id. at 1012.) The Court then found that the AAA rules gave\r\nthe arbitrators discretion to apportion fees and that the arbitrators had exercised\r\nthat discretion “by allowing the arbitration to proceed on the condition that\r\nLifescan advance the remaining fees.” (Id.\r\nat 1012–1013.) “There was therefore no\r\nbasis for an order requiring Premier to pay the fees, or compelling\r\narbitration.” (Id. at 1013.)

\r\n\r\n

Here, just like in Tillman and Lifescan, the Stipulation\r\nand Order incorporated the AAA rules. \r\nThose rules gave the AAA the discretion to charge certain fees. Pursuant to the CIAR, the AAA informed the\r\nparties that some arbitrator compensation deposits had not been paid and that\r\nany party, including the Defendants, can pay the balance of those fees. However, no one paid the balance, and,\r\nconsequently, the AAA terminated the proceedings. Therefore, because the AAA followed its rules\r\nin terminating the arbitration, the parties’ arbitration has been “had” in\r\naccordance with the Stipulation and Order. \r\n(Code Civ. Proc., § 1281.4.)

\r\n\r\n

Under Code of Civil Procedure section 1281.4, a court may lift a stay\r\nif the arbitration has been had. Here, because\r\nthe parties’ arbitration has been had, it is proper for the court to lift the\r\nstay.

\r\n\r\n

In addition, because the arbitrator terminated the arbitration without\r\nissuing an award, Plaintiffs must be allowed to pursue their claims in\r\ncourt. (Tillman, supra,\r\n825 F.3d at p. 1076 [“As Tillman’s arbitration terminated before the merits\r\nwere reached or any award issued, allowing her case to proceed in district\r\ncourt is the only way her claims will be adjudicated”]; Weiler, supra,\r\n22 Cal.App.5th at p. 980 [adopting Tillman’s reasoning for allowing a party\r\nto pursue their claims in court after lifting the stay].)

\r\n\r\n

For the reasons set forth above, the court finds that the arbitration\r\nhas been had in accordance with the Stipulation\r\nand Order. (Code Civ. Proc., § 1281.4.) The court therefore grants Plaintiffs’ motion\r\nto lift the stay of this action.

\r\n\r\n

ORDER

\r\n\r\n

For the reasons set forth above, the court grants plaintiffs Greg\r\nMooradian and Debra A. Mooradian’s motion to lift the stay of this action.

\r\n\r\n

The court orders that the stay of this action pending completion of\r\nthe arbitration pursuant to the September 12, 2017, September 19, 2017, October\r\n19, 2017, and March 21, 2018 orders is lifted. \r\n

\r\n\r\n

The court orders plaintiffs Mooradian and Debra A. Mooradian to give\r\nnotice of this ruling.

\r\n\r\n

\r\n\r\n

IT\r\nIS SO ORDERED.

\r\n\r\n

DATED: December 16, 2021

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

_____________________________

\r\n\r\n

Robert B. Broadbelt III

\r\n\r\n

Judge of the Superior Court

\r\n\r\n'
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