Petitioner’s petition to compel arbitration is GRANTED.

The Court takes judicial notice of the exhibits submitted by respondent. (See Evid. Code, § 452(d), (h).) The Court would request that, in the future, both parties comply with California Rules of Court, rule 3.1110(f), which requires that exhibits be separated with hard tabs.

BACKGROUND:

Petitioner filed this petition on 12/20/13 seeking to compel arbitration of a dispute between the parties. Petitioner seeks to compel arbitration pursuant to an arbitration provision in an agreement entitled “Agreement Among Tenants-in-Common” (“TIC”). The dispute pertains to loans taken out by the parties allegedly in relation to the acquisition of the subject property. Petitioner alleges that $2,197,158.80 is due on the loans and that respondent, as co-tenant, is obligated to pay 50% of this amount.

ANALYSIS:
“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Cal. Code of Civ. Proc, §1281.) Section 1281.2 of the Code of Civil Procedure states in pertinent part:

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.

(Cal. Code Civ. Proc., §. 1281.2.)

A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) Such enforcement may be sought by a party to the arbitration agreement. (Cal. Code Civ. Proc., § 1280, subd. (e)(1).)

The petition to compel arbitration functions as a motion and is to be heard in the manner of a motion, i.e., the facts are to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court’s discretion. (Cal. Code Civ. Proc., §1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413, 414.) The petition to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (Cal. Rules of Court, rule 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218 19.) This rule does not require the petitioner to authenticate the agreement or do anything more than allege its existence and attach a copy. (Ibid.) Once this is done, the burden shifts to the opposing party to demonstrate the falsity of the purported agreement. (Condee, supra, 88 Cal.App.4th at 218 219.)

In deciding a petition to compel arbitration, trial courts must first decide whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue of whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocer Co. (2004) 118 Cal.App.4th 955, 961.) “The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination. No jury trial is available for a petition to compel arbitration.” (Engalla v. Permanente Medical Group, Inc.(2007) 15 Cal.4th 951, 972 [citations omitted].)

1. An Enforceable Arbitration Agreement Exists

Petitioner provides a copy of the TIC, which was entered into by plaintiff, respondent, and non-party Figueroa Tower III LP on 2/17/04. (Pet. Exh. A.) The TIC includes an arbitration provision, which states, in relevant part: “Any claim between the parties under this Agreement shall be determined by private arbitration using the American Arbitration Association (AAA) Commercial Arbitration Rules with Expedited Procedures in effect on the date hereof, as modified by this agreement.” (Id., ¶ 25.)

Respondent does not appear to dispute that this arbitration agreement exists. Respondent also does not argue that the agreement is unenforceable.

2. Whether or Not the Claims Are Within the Scope of the Agreement must Be Decided by the Arbitrator

Respondent argues that the petition should be denied because petitioner has failed to provide sufficient admissible evidence to prove that this dispute is within the scope of the arbitration clause in the TIC. Defendant is correct that petitioner fails to include admissible evidence with the petition. The petition does not include a declaration or affidavit describing the loans. Though the petition is verified, the verification is made on information and belief. (See Pet., p. 6.) As such, the statements in the petition do not constitute valid evidence. (See Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 574.)

However, the TIC agreement makes clear that the arbitrator, not the Court, is to determine whether disputes between the parties are subject to arbitration. The question of whether the dispute between the parties is subject to arbitration is to be decided by the court, “[u]nless the parties clearly and unmistakably provide otherwise.” (United Public Employees v. City & County of San Francisco (1997) 53 Cal.App.4th 1021, 1026.) Where the parties have expressly agreed that the arbitrability of a claim is to be settled by arbitration, they “ ‘ “have conferred upon the arbitrator the unusual power of determining his own jurisdiction.” ’ [Citations.]” (Patchett v. Bergamot Station, Ltd. (2006) 143 Cal.App.4th 1390, 1397.) Here, the arbitration provision in the TIC states: “Any issue about whether a claim is covered by this agreement shall be determined by the arbitrator.” (Pet., Exh. A, ¶ 25.) Therefore, the parties expressly agreed that the arbitrability of a claim is to be settled by arbitration, and have therefore “clearly and unmistakably” provided that the arbitrability of the dispute is to be determined by the arbitrator, not the Court.

3. Petitioner Has Not Waived its Right to Arbitrate

Respondent argues that petitioner has waived the right to arbitrate because petitioner has sought other litigation against respondent.

As noted in Berman v. Health Net (2000) 80 Cal.App.4th 1359,

While in general arbitration is a highly favored means of settling disputes, it is beyond dispute a trial court may deny a petition to compel arbitration if it finds the moving party has waived that right. . . . There is no single test for waiver of the right to compel arbitration, but waiver may be found where the party seeking arbitration has (1) previously taken steps inconsistent with an intent to invoke arbitration, (2) unreasonably delayed in seeking arbitration, or (3) acted in bad faith or with willful misconduct. While engaging in litigation of the matter may be inconsistent with an intent to invoke arbitration, the party who seeks to establish waiver must show that some prejudice has resulted from the other party’s delay in seeking arbitration.

(Id. at pp. 1363-1364 [internal citations and quotations omitted].)

In Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, the California Supreme Court recognized the following factors in determining waiver:

“‘(1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparation of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place”; and (6) whether the delay “affected, misled, or prejudiced” the opposing party.'”

(Id. at p. 1196 [quoting Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 992 (quoting Peterson v. Shearson/American Exp., Inc. (10th Cir.1988) 849 F.2d 464, 467-468)].)

“State law, like the FAA, reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims…. Although a court may deny a petition to compel arbitration on the ground of waiver…, waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof.” (Saint Agnes Medical Center, supra, (31 Cal.4th at pp. 1195-1196.)

Respondent does not rest its waiver argument on any inconsistent actions taken by petitioner in the instant dispute. Instead, petitioner points to other litigation between the parties and third-party individuals. (See RJN, Exhs. C, D.) The Court notes that the dispute in RJN exhibit C does not involve either party to the instant petition. (See RJN, Exh. C.) In that action, the plaintiffs sought a determination as to the rights and obligations of the parties pursuant to an arbitration decision and an agreement dated 7/24/12. (See id., ¶¶ 32, 39.) Moreover, respondent acknowledges that the claims at issue in that action are not arbitrable. (See Resp., p. 6;16-17.) Though the action in RJN exhibit D did involve both parties to the instant petition, it did not include the claims raised in the instant dispute. (See RJN, Exh. D.) Because these actions involved different disputes than those presented here, the pursuit of litigation by petitioner and other parties in those actions does not constitute a waiver of arbitration in this action. The fact that the parties have engaged in litigation for other disputes does not establish that petitioner has waived the right to arbitrate the instant dispute.

4. The Court Find No Other Grounds for Discretionary Denial of the Petition to Arbitrate

Respondent argues that the Court should deny the petition in its discretion pursuant to Code of Civil Procedure section 1281.2. A court may deny a petition to compel arbitration where a party to an arbitration agreement is also a party to a pending court action with third parties, arising out of the same transaction or series of related transactions, and there is a possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2(c); Best Interiors, Inc. v. Millie & Severson, Inc. (2008) 161 Cal.App.4th 1320, 1329; Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 383, 394.)

Respondent argues that there are other actions that involve the parties to this dispute as well as third parties not bound by the arbitration provision. The Court notes that the actions in RJN exhibits C and E do not involve ether party to the instant dispute. Therefore, section 1281.2 does not apply to these actions.

Respondent fails to show that the other actions arise out of the same transactions as the instant dispute. Respondent asserts that the actions arise out of the same transaction or series of transactions because they all relate to the joint ownership of the property. The instant action is not so broad. The specific dispute at issue here is respondents’ obligations as to four loans made in relation to the property. (See Pet., ¶ 10.) The complaints provided in respondent’s RJN exhibits do not contain allegations as to these specific loans or the parties obligations thereto. (See RJN, Exhs. A, B, D.)

The Court notes that, in what may be an attempt to buttress its argument, three days after filing its Opposition, respondent filed a Notice of Related Case, indicating that the current matter may be related to three other cases that apparently are currently in Dept. 38. However, as of the writing of this opinion, this case has not been related to the other matters.

Respondent argues that, even if section 1281.2 does not apply, the Court may still stay any arbitration pending the disposition of the other cases between the parties because this could moot the arbitration. As discussed above, respondents have not sufficiently shown that these other actions relate to the dispute at issue here. Therefore, respondent fails to show that a ruling in these actions would render the arbitration of the instant dispute moot.

Conclusion

Petitioner’s petition to compel arbitration of the instant dispute is GRANTED.