Tri-Cor, Inc. v. City of Hawthorne

Opinion

KINGSLEY, J.

This is an appeal from an order denying a petition to order arbitration and to stay proceedings in a pending lawsuit until the termination of such arbitration. For the reasons set forth below, we affirm the order.

Plaintiff Tri-Cor, Inc., and defendant City of Hawthorne had entered into a contract for the construction by plaintiff of an airport administration buildiñg. The contract did not contain an arbitration clause. Construction was delayed and plaintiff brought an action in declaratory relief, alleging that the delay was due to the fault of the city and of certain subcontractors, and seeking a declaration of rights and a money judgment. The city filed an answer and a cross-complaint, alleging that the delay was due to the fault of plaintiff and alleging damages to the city from that delay. Plaintiff thereafter filed a petition to stay the litigation and for arbitration. The trial court denied the petition; plaintiff has appealed; we affirm.

After the plaintiff’s action was commenced the parties discussed the possibility of arbitration. Mr. Keel, the city attorney of defendant city, and Mr. Lucas, plaintiff’s attorney, agreed on the telephone that the dispute would be submitted to arbitration and that the subcontractors could join. On August 7, 1968, Mr. Keel, the city attorney, wrote a letter to Mr. Lucas agreeing to arbitration. On August 9, 1968, Mr. Lucas replied by letter agreeing that the dispute should be heard by a panel of three arbitrators.

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For about one month, Mr. Keel was on vacation; thereafter, Mr. Lucas telephoned Mr. Keel on September 16, 1968, to arrange for submission of the arbitration agreement. Mr. Keel said that the City of Hawthorne had

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retained associate counsel, Brown & Brown, to assist in arbitration, and Brown & Brown would contact Mr. Lucas. After waiting 11 days, Mr. Lucas again called Mr. Keel, who assured Mr. Lucas that contact would be made. After 11 days Mr. Lucas called Mr. Brown who said he would not be able to participate in arbitration proceedings until February 1969. At the request of Mr. Brown, Mr. Lucas agreed to prepare the submission agreement which was to be submitted to the American Arbitration Association. Plaintiff prepared the submission, plaintiff signed it, and mailed it to Mr. Brown. In a letter dated January 3, 1969, defendant refused to execute the agreement. Plaintiff’s petition to compel defendant to arbitrate and to stay proceedings followed.