17-CIV-04147 GEO GROUT GROUND MODIFICATION SPECIALISTS, INC.

VS. KANLER, INC., ET AL.

GEO GROUND MODIFICATION SPECIALISTS, INC. JOSEPH M. SWEENEY

KANLER, INC. WILLIAM J. TAYLOR

CHRISTOPHER ROTH AND YVONNE ROTH’S MOTION TO COMPEL ARBITRATION AND TO STAY

· DENIED. Defendants / Cross-Complainants / Cross-Defendants CHRISTOPHER ROTH and YVONNE ROTH’s Petition to Compel Arbitration is DENIED.

· This is a collection action in which the Plaintiff Geo Grout Ground Modification Specialists, Inc. seeks to recover $26,350 in unpaid fees for its soil compaction work in a home remodeling job on Petitioners Mr. & Mrs. Roth’s property in San Mateo. Geo Grout, a subcontractor, sues the General Contractor Kanler, Inc. and the Roths. However, by a Cross-Complaint, the Roths have interjected into the case a construction defect claim that falls outside the scope of the Arbitration that they seek to invoke.

While it appears that a valid agreement to arbitrate exists between the Roths and Defendant KANLER, INC., the Court finds that the Roths have waived their right to compel arbitration by taking steps in this litigation that are inconsistent with the intent to invoke arbitration. Code Civ. Proc. § 1281.2(a); Davis v. Blue Cross of No. California (1979) 25 Cal.3d 418, 425-426.

The Roths argue that their claims against Kanler and Kanler’s claims against them may be easily separated from both parties’ cross-claims with Plaintiff GEO GROUT, and sent to arbitration. However, a review of the Roths’ Cross-Complaint demonstrates that the Roths have greatly expanded the issues raised in the Complaint (e.g. the non-payment of fees) by alleging that the work done by Geo Grout at the Subject Property is defective. The Roths’ active participation in this lawsuit make it clear that the intent to arbitrate has been waived.

Moreover, the exception provided in Code Civ. Proc. § 1281.2(c) has been triggered. The Roths and Kanler are parties to a pending court action with a third party, Geo Grout, arising out of the same transaction or series of related transactions. Due to the interrelated claims being made in Geo Grout’s Complaint and the Cross-Complaints filed by the Roths and Kanler, there is a real possibility of conflicting rulings on common issues of law or fact. Code Civ. Proc. § 1281.2(c); Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 101. Accordingly, the petition is Denied.