Cross-Defendants’ Petition to Compel Arbitration and to Stay Proceedings; Carmel Building’s request for judicial notice
Rodrigo Alvarado v. Carmel Building & Design, Inc. (and Related Cross-Actions)
Cross-Defendants’ Petition to Compel Arbitration and to Stay Proceedings
Hearing Date: July 10, 2026
Cross‐Defendants Ilya and Anna Asnis (collectively, “Asnis”) petition this Court to compel arbitration of all disputes between themselves and Cross‐Complainant Carmel Building & Design, Inc. (“Carmel Building”), stay the related litigation, appoint a neutral arbitrator, and award attorneys’ fees and costs. Carmel Building opposes, arguing that there is a potential for conflicting rulings under Code of Civil Procedure1 section 1281.2, subdivision (c), because of the simultaneously pending negligence case brought by Plaintiff Rodrigo Alvarado (“Plaintiff”).
Based on the parties’ papers and applicable legal authorities, Asnis’s petition is GRANTED. The arbitration between Asnis and Carmel Building is STAYED pending completion of Plaintiff’s complaint. Also, the cross-claims are STAYED pending arbitration. Counsel are ordered to meet and confer regarding the selection of a neutral arbitrator and to report the results back to the Court. If the parties cannot reach an agreement, the Court shall provide instructions on the process for selecting an arbitrator, as requested in the petition.
Asnis’s request for attorney fees is DENIED as premature because the attorney’s fee provision of the Cost-Plus-Percentage-Fee Agreement Home Improvement Contract (“Contract”) is tied to the outcome of the arbitration. [Contract, Exh. A to Anna Asnis Decl. at p. 9, ¶ P(2).] Asnis’s request for costs is premature and is DENIED on that basis. [California Teachers Assn. v. Governing Board (1984) 161 Cal.App.3d 393, 400.] Finally, Carmel Building’s request for judicial notice is GRANTED.
The Further Case Management Conference (“CMC”) set for tomorrow, July 10, following the petition hearing, is MAINTAINED.
Background.
On March 8, 2024, Plaintiff, a professional painter, was working on a jobsite with exterior scaffolding when, suddenly and without warning, it collapsed, causing him to fall approximately 20 feet to the ground. He allegedly sustained severe and lasting injuries. [Complaint at ¶¶ 14-15, 17-18.]
1 Hereinafter, all statutory references are to the Code of Civil Procedure. 1
After the accident, Plaintiff filed a negligence lawsuit against the general contractor of the project, Carmel Building, claiming that it had exclusive care and custody of the premises where the incident occurred. [Complaint at ¶¶ 5, 8, 14-16, 19-30; Cross-Complaint at ¶ 6.] Also, Plaintiff asserted that Carmel Building was responsible for the erection, inspection, and maintenance of the scaffolding on which he was working. [Complaint at ¶ 16.] Carmel Building answered and denied Plaintiff’s allegations. [Answer, passim.]
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Carmel Building also filed a Cross-Complaint for indemnity, contribution, declaratory relief, and breach of contract, claiming that Asnis “owned, leased, managed, supervised, designed, engineered, controlled, inspected, maintained property, or performed construction, painting, or architectural related activities at” the property where Mr. Alvarado’s accident occurred. [Carmel Building’s Cross-Complaint at ¶¶ 6-7, 16-51.]
On May 14, 2026, Asnis filed a Cross-Complaint against Carmel Building. [Asnis’s Cross-Complaint.] As part of the project, Asnis and Carmel Building entered into the Contract. [Id. at ¶ 12.] This Contract contains a mediation/arbitration clause, and the parties initialed it. [Ibid.; Contract, Exh. A to Anna Asnis Decl. at p. 9, ¶ P(2).]
Asnis contends that Carmel Building’s cross‐complaint falls squarely within the Contract’s dispute‐resolution procedures. [Motion at 1-2.] Their declarations and counsel’s declarations affirm the existence of the Contract and its terms.
Carmel Building’s opposition does not dispute the existence or validity of the Contract and the mediation/arbitration clause. Rather, it argues that arbitration should be denied because cross‐claims among Carmel Building and Asnis involve fault allocation intertwined with Plaintiff’s negligence claims, creating a possibility of inconsistent rulings under section 1281.2, subdivision (c). [Opp. at 3-4.]
In reply, Asnis argues that section 1281.2, subdivision (c), does not require denial of arbitration and that the Court has multiple procedural options, including ordering arbitration but staying its commencement until Plaintiff’s negligence claim is resolved. [Reply at 2.]
Applicable Legal Standards.
A court must grant a petition to compel arbitration if it determines an agreement to arbitrate exists and the resisting party raises no valid defense. [Code Civ. Proc. § 1281.2; Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 236.] The party seeking arbitration bears the burden of proving the agreement; the opposing party bears the burden of proving any defense.
A petition must attach or set forth the relevant arbitration provision, and the court determines enforceability through declarations and supporting documents. [Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.] Once an agreement is shown, the statutory presumption favors arbitration.
Even where an arbitration agreement exists, the court may deny arbitration or fashion alternative procedures if (1) a party to the arbitration agreement is also a party to pending litigation with a third party; (2) the litigation arises out of the same transaction or related transactions; and (3) there is a possibility of conflicting rulings on common issues of law or fact. [Code Civ. Proc. § 1281.2, subd. (c).] Possible options include ordering arbitration and staying litigation, or staying arbitration pending resolution of the court action. [Id. at subd. (d).]
Discussion.
Carmel Building’s request for judicial notice of the operative pleadings (Plaintiff’s Complaint, Carmel Building’s Cross-Complaint against Asnis, and Asnis’s Cross-Complaint against Carmel Building) is GRANTED. [Evid. Code § 452, subd. (d).]
Carmel Building does not deny signing the Contract or the existence of the arbitration clause. Asnis has provided the Contract and declaration evidence demonstrating that both parties agreed to arbitrate disputes related to the Contract. No defenses, such as waiver or rescission, are asserted. The threshold requirement under section 1281.2 is met.
Nonetheless, Carmel Building contends that arbitration should be denied because of the possibility of inconsistent fault-allocation findings among Carmel Building, Asnis, and Plaintiff. The Court recognizes the potential overlap: indemnity and contribution claims may involve comparative fault determinations. [Coca‐Cola Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378.] However, Plaintiff is not a party to the Contract. The indemnity and contribution cross‐claims arise from the Contract, not from the underlying tort claim.
The Court has discretion to avoid conflicting rulings by staying arbitration or staying litigation. [Code Civ. Proc. § 1281.2, subd. (d).] Asnis proposes—and the Court agrees—that arbitration can be ordered but stayed pending resolution of Plaintiff’s negligence claim. This approach (1) preserves the contractual right to arbitrate; (2) avoids inconsistent fault determinations; (3) allows Plaintiff’s claim to proceed first; and (4) promotes judicial economy.
Therefore, the petition to compel arbitration is GRANTED, and the arbitration is STAYED pending completion of Plaintiff’s complaint. Also, the cross-claims by and between Carmel Building and Asnis are STAYED pending arbitration.
Because arbitration will be stayed pending Plaintiff’s case, immediate appointment of an arbitrator is unnecessary. Parties are ordered to meet and confer and report back. If the parties are unable to agree, the Court will provide a selection procedure at a later date.
Asnis’s requests for an order awarding them fees and costs are premature and are DENIED. The Contract’s fee clause ties fees to the outcome of arbitration and requires an award of at least 60% of the amount claimed for entitlement. Because no arbitration award exists, a request for fees is premature at this time. Further, costs under section 1293.2 are premature because no final determination has been reached.
Conclusion.
In sum:
• Carmel Building’s request for judicial notice is GRANTED. • Asnis’s Petition to Compel Arbitration is GRANTED. • The arbitration between Asnis and Carmel Building is STAYED pending completion of Plaintiff’s negligence action. • The cross-claims by and between Carmel Building and Asnis are STAYED pending arbitration. • Parties are ordered to meet and confer regarding the selection of a neutral arbitrator and report back; appointment by the Court is deferred. • Requests for attorney’s fees and costs are DENIED as premature. • The CMC set for July 10, 2026, following Asnis’s petition, is MAINTAINED.
Asnis shall prepare the Proposed Order consistent with this Tentative Ruling.
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