JANEEN MARQUARDT, ET AL VS. PHILIP PERA, ET AL

Plaintiffs and the Pera Defendants (buyers and sellers) do not dispute that they entered into the Purchase Agreement and that it contains an arbitration clause. There is no dispute that its broad

July 31, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ arbitration language encompasses the causes of action asserted in this case against the Pera Defendants.

In December 2024, Plaintiffs filed their initial Complaint against both the Peras Defendants and the Broker Defendants, but Plaintiffs served only the Broker Defendants. In January and February 2025, Plaintiffs and the Peras Defendants participated in a two-session JAMS mediation, without success. Throughout much of 2025, Plaintiffs and the Broker Defendants litigated this case, including exchanging written discovery. Throughout most of 2025, the Pera Defendants did not participate in the lawsuit, as they had not been served with the original Complaint.

On Oct. 9, 2025, Plaintiffs filed a First Amended Complaint (“FAC”), and shortly thereafter, served it on both the Broker Defendants and the Pera Defendants. Per the filed Proof of Service, Plaintiffs served the Pera Defendants with the FAC on Nov. 4, 2025, in Arizona. In late November 2025, the Pera Defendants contacted Plaintiffs and informed them that they intended to file both a motion to compel arbitration and a demurrer to the FAC. The Pera Defendants asked Plaintiffs to stipulate that Plaintiffs would not argue that their filing of a demurrer constituted a waiver of the Pera Defendants right to compel arbitration, to which Plaintiffs did not agree.

On Dec. 24, 2025, the Pera Defendants went ahead and filed both the present motion to compel arbitration and a demurrer to the FAC. Due to the Court’s Law & Motion calendar schedule, the soonest available hearing dates were in July 2026. Notably, both this motion to compel arbitration and demurrer were filed on the very same day. While parties’ have some input on dates they can request for a hearing, ultimately it is up to the Court and in this instance the Court Clerk apparently then set the hearing date on their demurrer for July 24, 2026, and set the hearing date on their motion to compel arbitration for July 31, 2026. The timing on these hearings thus does not support any waiver argument.

Plaintiffs later sought to shorten time for a hearing on the demurrer, which they could not do, because the Court had no sooner available hearing dates. The July 24, 2026 demurrer hearing went forward. The Court ruled on the Pera Defendants’ demurrer to all eight causes of action asserted against them in the FAC. (July 24, 2026 Minute Order.) and expressly granted an extended period of time for any amendment due to this motion to compel arbitration being held one week later.

In opposing the Pera Defendants’ motion to compel arbitration, Plaintiffs assert two arguments: (1) that the Pera Defendants waived their right to arbitrate; and (2) given that Plaintiffs’ lawsuit against the Broker Defendants involves substantially the same facts and claims, and arises from the same transaction, the Court should exercise its authority under Code Civ. Proc. § 1281.2(c) to deny the Pera Defendants’ motion to compel arbitration and litigate all claims against all defendants in court, for the purpose of promoting judicial economy, efficiency, and to avoid duplicative proceedings and the risk of inconsistent rulings.

July 31, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ All parties agree that the agreement to arbitrate “shall be governed by the Federal Arbitration Act,” thus the Court cannot deny the Pera Defendants’ motion to compel arbitration based on § 1281.2(c).

In Victrola 89, LLC v. Jaman Props. 8 LLC (2020) 46 Cal.App.5th 337, a case involving similar facts, the trial court exercised its discretion § 1281.2(c) and denied a motion to compel arbitration because there were other defendants in the lawsuit who were not parties to the arbitration agreement, and therefore could not be compelled to arbitrate. (Id. at 345-352.) The trial court found granting the motion would result in two separate proceedings, creating a possibility of conflicting rulings. (Id.) The Court of Appeal reversed. (Id.) The appellate court held that where the parties to a real estate transaction had expressly agreed in their Purchase Agreement that the Federal Arbitration Agreement (FAA) would govern whether their agreement to arbitrate shall be enforced, the trial court could not use § 1281.2(c) to deny arbitration. (Id.) The Victrola court began by stating:

“In accordance with choice-of-law principles, the parties may limit the trial court's authority to stay or deny arbitration under the CAA by adopting the more restrictive procedural provisions of the FAA .... The question, therefore, is whether the parties expressly incorporated the FAA’s procedural provisions into their agreements.”

(Id. at 345.) The Court noted that the Purchase Agreement’s arbitration clause stated: “Enforcement of this agreement to arbitrate shall be governed by the Federal Arbitration Act.” Based on this language, the Court found that the parties intended to incorporate the FAA with respect to compelling arbitration. (Id. at 345-352.) “It follows that when an agreement provides that its ‘enforcement’ shall be governed by the FAA, the FAA governs a party's motion to compel arbitration. (Id.) Because the parties had expressly agreed that the FAA would govern enforcement of the arbitration agreement, the Court concluded that the trial court could not look to Section 1281.2(c) to deny the motion to compel arbitration. (Id.)

Victrola appears to be on point and binding, thereby precluding this Court from denying the Pera Defendants’ motion to compel arbitration by exercising discretion under § 1281.2(c), regardless of the fact that Plaintiffs are litigating a substantially related lawsuit against the Brokers Defendants, who are not subject to the arbitration clause. Because the Court cannot deny the motion using § 1281.2(c), the outcome of this motion to compel arbitration hinges on the waiver issue.

The Court finds that the Pera Defendants did not waive the right to arbitrate.

In Quach v. California Com. Club, Inc. (2024) 16 Cal. 5th 562, 573, the California Supreme Court identified several factors trial courts should consider when assessing an argument that a defendant has waived the right to arbitrate, including: “(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;

July 31, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ (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.”

The Pera Defendants have some facts weighing against a finding of waiver.

First, while Plaintiffs discuss many events that took place before the Peras were ever served with a Summons, the Pera Defendants were first served with a Summons in this case (for the FAC) on Nov. 4, 2025, and they filed a motion to compel arbitration on Dec. 24, 2025, the very next month. That is a very short timeframe. In fact, on Nov. 24, 2025, just 20 days after being served, the Pera Defendants’ counsel contacted Plaintiffs’ counsel informing Plaintiffs of the Pera Defendants’ plan to file a motion to compel arbitration and a demurrer, and requesting a stipulation that filing a simultaneous demurrer would not be characterized as a waiver of the Peras’ right to arbitrate.

Thus, unlike the classic waiver case where a defendant spends months litigating while concealing an intention to arbitrate, the Pera Defendants, promptly after being served, notified Plaintiffs of their desire to arbitrate, and quickly filed the motion to compel arbitration.

Second, while the hearing on this motion to compel arbitration is taking place seven months after the Pera Defendants filed it on Dec. 24, 2025, that fact is the result of the Court’s congested calendar—not any intentional delay on the Peras’ part.

Further, the Pera Defendants’ participation in discovery has been minimal and largely unavoidable. It appears the Pera Defendants have propounded no discovery, taken no depositions, and served no subpoenas. That is, they have not initiated any discovery. They have merely responded to some limited written discovery served by the Broker Defendants, which the Peras were arguably obligated to do, since the mere filing of a motion to compel arbitration does not stay discovery. (Brock v. Kaiser Found.

Hosps. (1992) 10 Cal.App.4th 1790, 1796.) The Pera Defendants’ participation in mediation is not a fact weighing in favor of waiver, given that mediation was a required prerequisite to participation in an arbitration. (See Purchase Agreement at Sect. 22 [“DISPUTE RESOLUTION: A. MEDIATION: The Parties agree to mediate any claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration ...”])

What could complicate the waiver analysis is the demurrer that the Pera Defendants filed and set for a hearing before the hearing on their motion to compel arbitration. The Pera Defendants filed the demurrer and the motion to compel arbitration on the same day (Dec. 24, 2025), but the demurrer hearing was a week earlier, and the Court engaged in a detailed analysis of the merits of all of the FAC’s eight (8) causes of action asserted against them and issued a ruling, before the Court decided whether this case belongs in arbitration. As noted above, the calendaring of these hearings was largely a function of the Court Clerk’s setting. The Court does not view this as a desire to have the demurrer heard first or as meaningful litigation conduct.

July 31, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ It is also difficult to conclude that the Peras Defendants’ conduct ever communicated an abandonment of arbitration. Instead, as noted, immediately after being served with the Summons, they informed Plaintiffs that they would move to compel arbitration, and immediately, they identified the waiver issue that could be argued based on their simultaneous filing of a demurrer, and they promptly put their motion to compel arbitration before the Court. Not only was there no delay, but they continually made their desire to arbitrate clear.

The parties’ January 2026 correspondence is interesting in the abstract. In their Opposition brief, Plaintiffs point out that the Pera Defendants set their demurrer to be heard on July 24, 2026, which Plaintiffs argue was “a full week before” the hearing on the motion to compel arbitration, and Plaintiffs argue that “[a] litigant should not be permitted to “test[] the water before taking the swim” and “go elsewhere” if the water is chilly. (Opp. at 7-8.) But it does not appear that Plaintiffs ever objected to such sequencing.

In fact, after the Pera Defendants noticed the demurrer and the motion to compel arbitration hearings for July 24, 2026 and July 31, 2026, respectively, Plaintiffs contacted the Peras’ counsel, stating that they planned to ask the Court to expediate/shorten time for the demurrer hearing (but not the motion to compel arbitration hearing). The Pera Defendants expressed no objection to the demurrer hearing being expediated, but that didn’t happen, due to the Court’s busy calendar. (July 24, 2026 Azad Decl., Ex.

A.) This background makes it difficult for Plaintiffs’ to complain about the demurrer begin heard first—given that they wanted the demurrer to be heard far earlier. Regardless, the timing of these two hearings was largely a function of the Court Clerk’s setting, and little else.

The Court declines to find that the Pera Defendants waived their right to arbitrate, and accordingly, their motion to compel arbitration is GRANTED. The claims asserted against them are stayed, pending completion of the arbitration. (Code Civ. Proc. § 1281.4.)

Plaintiffs’ claims against the Broker Defendants are also HEREBY STAYED, pending completion of the Marquardt-Pera arbitration.

While the Court normally would not stay litigation that has been proceeding for a year and a half (about 19 months), the Court is inclined to do so here.

Plaintiffs and the Broker Defendants have been litigating this case since the Broker Defendants answered the initial complaint in January 2025. They have exchanged written discovery and produced documents. It appears that no depositions have taken place.

But the very facts that made the Plaintiffs’ § 1281.2(c) argument somewhat compelling also supports a stay of the Broker litigation, given the Court’s conclusion that it cannot deny the Peras Defendants’ motion to compel arbitration based on § 1281.2(c). The two proceedings concern substantially similar facts. Both raises similar factual questions, such as what representations were made about rentals through Airbnb; whether and how often the Property had actually been rented through Airbnb; whether it legally could be rented for short-term rentals; whether such rentals generated $60,000 per year in income; what the sellers told the brokers; what the brokers told the buyers, etc. Further, many of the causes of action asserted against the Pera and Broker Defendants overlap. If both proceedings (this court case and an

July 31, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ arbitration) go forward simultaneously, parties and witnesses could be deposed and examined, on the same topics, in two different forums. Allowing these questions to be adjudicated simultaneously before both an arbitrator and this Court would create precisely the duplication and inconsistent ruling problem that Plaintiffs have recognized.

A stay of Plaintiffs’ lawsuit against the Broker Defendants, pending resolution of the arbitration, resolves much of this problem. (§ 1281.2(c).) It is up to all parties to decide whether or not the Broker Defendants wish to join in the arbitration. Judicial economy would certainly encourage this, but that is not before the Court.

Conclusion.

Having considered the parties’ arguments in their totality, the Court GRANTS the Peras Defendants’ motion to compel arbitration, and STAYS this lawsuit in its entirety, until completion of the Marquardt-Pera arbitration. The Case Management Conference scheduled for August 20, 2026 is thus continued to August 19, 2027 at 9:00 a.m., still before the Civil Commissioner in Dept. 30 / Courtroom H, on for Arbitration Status.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.