HEARING ON PETITION FOR ORDER COMPELLING BINDING ARBITRATION
FILED BY RAMIRO HURTADO
* TENTATIVE RULING: *

Plaintiff’s petition to compel arbitration is denied, on three independent grounds. First, the Court finds that plaintiff has waived the right to compel arbitration. Second, plaintiff’s petition appears to be conditioned on the Court ordering arbitration through the JAMS arbitration service, and the Court finds that it has no legal basis for making such an order. Third, plaintiff has offered no legal theory as to how defendant Wells Fargo can be compelled to arbitrate, given that Wells Fargo is not a party to the arbitration agreement, and the Court anticipates that plaintiff will not wish to litigate this dispute in two separate forums.

The parties shall properly tab their exhibits in all future filings. (See, Cal. Rules of Court, rule 3.1110, subd. (f).)

Waiver

Plaintiff’s counsel frankly acknowledges that his firm has a “practice” of filing Superior Court complaints despite the existence of an arbitration agreement, serving discovery “shortly thereafter,” and then imposing on the defendant the burden of petitioning to compel arbitration. (Opening Memorandum, page 6, lines 24-28.) This cynical practice shows the kind of bad faith that, in turn, supports a finding of waiver. (See, Christensen v. Dewor Developments (1983) 33 Cal.3d 778, 784 [“[t]he courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration”].)

Plaintiff’s six-month delay in seeking to compel arbitration, and plaintiff’s conduct in requiring defendants to respond to a total of eight sets of written discovery requests, further supports a finding of waiver. (See, e.g., Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557-559 [trial court reversed because three-month delay and participation in discovery showed waiver].) It was only when plaintiff was on the brink of being required to respond in kind that plaintiff made arbitration a priority; defendants filed a request for assignment of a discovery facilitator on January 21, 2014, and plaintiff filed the pending petition to compel on January 24, 2014. (Abernethy Dec., paragraph 15.) The Court takes judicial notice that there would appear to be no automatic right to any formal written discovery under the “streamlined” rules of the JAMS arbitration service that plaintiff seeks to use; those rules appear to require only an informal exchange of documents and information, subject to the arbitrator’s discretion. (See, http://www.jamsadr.com/rules-streamlined-arbitration/#Rule13.)

Particular Arbitration Service

Plaintiff seeks to compel defendants to arbitrate through the JAMS arbitration service. However, plaintiff fails to offer any evidence that JAMS is the only arbitration service suitable for the parties’ dispute. The Court notes that the American Arbitration Association, one of the arbitration services mentioned in the parties’ arbitration agreement, has published its Supplementary Procedures for Consumer-Related Disputes. (See, website at adr.org.)

Plaintiff’s insistence on using the JAMS arbitration service, when the Court has no power to compel that result, constitutes a second, independent ground for denying plaintiff’s petition to compel arbitration.

Defendant Wells Fargo

Plaintiff apparently seeks to compel defendant Wells Fargo to arbitrate, in addition to defendant Dohan. But plaintiff has not shown that there is any agreement between himself and Wells Fargo providing for arbitration.

In some situations, arbitration may be denied if compelling arbitration as to only one of multiple parties would create the risk of conflicting rulings. (Code Civ. Proc., section 1281.2, subd. (c). See, Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 100-102.) In the case at bar, however, the arbitration agreement provides that it is governed by the Federal Arbitration Act, “and not by any state law concerning arbitration.” Because of this language, the FAA preempts section 1281.2. (See, Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1121-23 [agreement to arbitrate “pursuant to the FAA” incorporated the FAA’s procedural provisions, and so prevented the application of CCP section 1281.2, subd. (c)].)

This means that, if the Court were to find that plaintiff has the right to compel arbitration as against defendant Dohan, the Court would either have to stay this action as against defendant Wells Fargo or allow this action to proceed as against Wells Fargo. The Court anticipates that plaintiff would find such a procedural situation unacceptable, and would prefer to proceed with this action as against both defendants.