R. Baker, Inc. v. Motel 6, Inc.

Opinion

GILBERT, J.

Here we come to the unremarkable conclusion that Code of Civil Procedure section 1281.5

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means what it says: A party who files an action to enforce a mechanic’s lien, but who does not at the same time request that the action be stayed pending arbitration, waives any right to arbitration.

Facts

Appellant, R. Baker, Inc. (Baker), appeals from the preliminary injunction restraining it from arbitrating a dispute with respondents Motel 6, Inc., and Rudy Simone Construction Company, Inc. (Simone).

Baker performed construction work for Motel 6 and Simone pursuant to a written agreement with Simone. The agreement contained a clause providing for arbitration in the event of a dispute between the parties.

On May 6, 1982, Baker filed a complaint against Simone and Motel 6 to foreclose a mechanic’s lien and for damages. Shortly after filing the action, Baker’s attorney and the attorney then representing Motel 6 and Simone, Joseph Melino, discussed resolving the dispute before the American Arbitration Association. Baker’s attorney gave Melino an open extension of

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time in which to answer or otherwise plead, which Melino confirmed in a letter dated June 8, 1982. In this letter he also suggested that the matter be arbitrated.

Several amended complaints later, Melino moved to withdraw as attorney for respondents. In his declaration, which was served on Baker on November 28, 1984, he alleged, among other things, that a conflict had developed between him and his clients. He had tentatively agreed with opposing counsel to resolve the dispute by way of arbitration, but his clients opposed binding arbitration.

On November 30, Baker filed its demand for arbitration. The new attorneys representing Motel 6 and Simone answered the complaint and thereafter brought a motion to enjoin arbitration. The court issued a preliminary injunction restraining Baker from proceeding to arbitration because Baker had not complied with Code of Civil Procedure section 1281.5 in that it failed to request a stay when it filed its complaint.