Motion to arbitrate
In response, Cross-Complainants contend that when they stipulation was entered into the time to oppose based on the continued hearing date has not run, so they still could amend as of right under Code of Civil Procedure section 473(a) – that is without any limitations. According to Cross-Complainants, the stipulate simply extended that period of “as of right” amendment past the day the opposition would have been due.
But Cross-Complainant had, in fact, filed an opposition to the demurrer and the hearing date was continued only after the statutory time to amend as of right was over. [ROA ## 47, 56, 58, 78.]
As a result, the court concludes that the stipulation and the order on it effectively took the place of a ruling on the pending demurrer. Accordingly, the court finds that the seventeenth through twenty- first causes of action were added without leave.
Accordingly, the motion to strike these causes of action is granted, but without prejudice to Cross-Complainants bring a motion to amend.
As a result of this ruling and the demurrer ruling, the remainder of the motion to strike is moot.
12. 2025-1511360 Defendants Law Offices of Michael Taibi and Michael Taibi, Esq.’s Salazar vs. motion to arbitrate all claims asserted by Plaintiffs Baltazar Law Offices of Salazar Jr., Lilliana Venegas, Baltazar M. Salazar, Humerto Michael A. Rosales, and Imperium Metal Products is granted. The action is Taibi, P.C. stayed pending completion of arbitration. (Code Civ. Proc. § 1281.4.) Defendants’ request for sanctions is denied.
“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.” (Gravillis v. Coldwell Banker Residential Brokerage Co. (2006)143 Cal. App. 4th 761, 770-71 [internal quotations and citations omitted]). In determining whether there is a duty to arbitrate, the court must examine and, “to a limited extent, construe the underlying agreement.” (Ibid.)
Arbitration, whether under the California Arbitration Act (CAA) or Federal Arbitration Act (FAA), “is a matter of consent, not coercion ... a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” (Pinnacle Museum Tower
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [internal quotations and citations omitted].) The party seeking to arbitrate must prove the existence of the agreement. (Id, at p. 236.) If an agreement exists, then public policy substantially favors arbitration (see Code Civ. Proc. § 1281.2 [court shall order arbitration if it determines valid agreement to arbitrate exists]) and the burden shifts to the party opposing arbitration to “demonstrate that an arbitration provision cannot be interpreted to require arbitration of the dispute.” (Coast Plaza Doctors Hospital v.
Blue Cross of California (2000) 83 Cal.App.4th 677, 686-87.) But “‘[t]here is no public policy in favor of forcing arbitration of issues the parties have not agreed to arbitrate.”‘ (Romo v. Y-3 Holdings, Inc. (2001) 87 Cal.App.4th 1153, 1158, quoting Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co. (1998) 68 Cal.App.4th 83, 89.)
Plaintiffs do not challenge the existence or validity of the arbitration agreement. Rather, Plaintiffs contend Defendants waived their right to arbitrate.
The right to arbitration may be waived. (Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 572.) The “determination of whether [a party] has lost its right to compel arbitration as a result of its litigation-related conduct is governed by generally applicable state law contract principles.” (Id.) Under these principles, “the party opposing enforcement of a contractual agreement must prove by clear and convincing evidence that the waiving party knew of the contractual right and intentionally relinquished or abandoned it.” (Id. at p. 584.)
It is undisputed that the written retainer agreement containing the arbitration clause signed by Plaintiffs was countersigned by Defendant Michael A. Taibi, Esq. Thus, even if Defendants’ counsel may have been unaware of the arbitration provision’s existence until after this action was filed, Defendants were aware of the existence of the arbitration clause. Defendants’ waiver of their ability to compel arbitration depends on whether Defendants engaged in acts inconsistent with the right to arbitrate.
The second element of the waiver analysis requires a showing of an intentional relinquishment or abandonment of the right to arbitrate. This element “may be proved by evidence of words expressing an intent to relinquish the right or of conduct that is so inconsistent with an intent to enforce the contractual right as to lead a reasonable fact finder to conclude that the party had abandoned it.” (Quach, supra, 16 Cal.5th at p. 584.) “The waiver inquiry is exclusively focused on the waiving party’s words or conduct; neither the effect of that conduct on the party seeking to avoid enforcement
of the contractual right nor that party’s subjective evaluation of the waiving party’s intent is relevant.” (Id. at p. 585.)
Plaintiffs commenced the instant action on September 12, 2025. (ROA 2.) Defendants moved to compel arbitration on April 8, 2026 (ROA 31), nearly seven months after the Complaint was filed and almost 4 months after filing a demurrer to the Complaint on December 11, 2025 (ROA 11).
Plaintiffs propounded discovery on Defendants on February 13, 2026. (See ROA 38, 56, 58.) Defendants requested and were granted an extension of time to respond. (See id.) On March 31, 2026, the day before the extension deadline, Defendants asserted for the first time that the parties’ retainer agreement contains a binding arbitration provision. (Id.) Plaintiffs moved to compel responses to the discovery and to deem facts admitted when Defendants did not serve any discovery responses. (See ROA 38, 40-42.)
The record before the court, by clear and convincing evidence, does not establish that Defendants intentionally relinquished or abandoned their right to arbitrate. In cases finding waiver in less than eight months, additional facts show involvement in litigation and intentional relinquishment or abandonment. (See, e.g., Adolph v. Coastal Auto Sales, Inc. (2010) 184 Cal.App.4th 1443, 1452 [affirming waiver where defendant delayed six months, did not indicate arbitration on the CMS, filed two demurrers, and engaged in discovery without objection on the ground of arbitration]; Guess”, Inc. v.
Superior Court (2000) 79 Cal.App.4th 553 [affirming waiver where defendant delayed four months, did not plead the right to arbitrate as an affirmative defense, and engaged in extensive discovery without objection on the ground of arbitration]; Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205, 217 [affirming waiver where defendant delayed six months and obtained 1600 pages of document discovery and a two-day deposition of plaintiff].) Here, although Defendants delayed almost seven months and filed a demurrer, they did not file a cross-complaint, did not engage in affirmative discovery, and did not provide discovery responses.
Defendants’ invocation of the litigation machinery was not substantial. (See Khalatian v. Prime Time Shuttle, Inc. (2015) 237 Cal.App.4th 651, 662 [filing a demurrer does not result in waiver if it is withdrawn prior to a determination on the merits].) Thus, Defendants did not waive their right to arbitrate. The motion to compel arbitration is granted.
Defendants to give notice.
Given the Court’s determination on the motion to compel arbitration, the Court declines to consider Defendant’s demurrer.