18-CIV-05149 MICHAEL O’HEIDHIN DBA POLLOUGH CONSTRUCTION VS. DABORIS COMPANY, INC., ET AL.

MICHAEL O’HEIDHIN DBA POLLOUGH CONSTRUCTION DABORIS COMPANY, INC.
MARK J. RICE BRIAN IRION

PETITION TO COMPEL BINDING CONTRACT ARBITRATION AND STAY OF ACTION PENDING ARBITRATION PURSUANT TO CONTRACT AND REQUEST TO STAY AND EXTEND TIME TO RESPOND TO CROSS-COMPLAINANTS PENDING HEARING ON THIS PETITION BY MICHAEL O’HEIDHIN DBA POLLOUGH CONSTRUCTION AND LAURA O’HEIDHIN TENTATIVE RULING:

Plaintiff’s Petition to Compel Arbitration and Stay Action is DENIED.

Plaintiff waived his right to compel arbitration. Plaintiff complied with Code of Civil Procedure section 1281.5 by alleging that he does not waive the right to arbitrate and intends to move, within 30 days after serving the Complaint, to compel arbitration. (Code of Civ. Proc. Sect. 1281.5, subd. (a); see Complaint at 12:13-20.) Section 1281.5 requires that “within 30 days” after serving the summons and complaint, the plaintiff must file and serve a motion to stay the action pending arbitration. (Id. sect. 1281.5, subd. (b).) “The failure of a claimant to comply with this subdivision is a waiver of the claimant’s right to compel arbitration.” (Id.)

Plaintiff served the Summons and Complaint on October 10 (Defendant Shoshany), October 11 (Defendant Barnett) and November 24 (Defendant Whitney). Using these dates, the 30 days to bring the present motion expired on November 12 and December 24, 2018, respectively. (The 30th days after October 10 and 11 were holidays; the first subsequent non-holiday for both was November 12.) Plaintiff filed the present petition on January 31, 2019, long after the statutory deadline to do so.

The Petition fails to meet the 30-day filing deadline. Pursuant to the express language of section 1281.5(b), the right to compel arbitration is waived. The Petition to Compel Arbitration is denied. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant Barnett Company shall prepare a written order and judgment consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.