Homestead Savings & Loan Ass'n v. Superior Court

THE COURT.

Petitioner seeks a writ of mandate requiring the respondent to vacate its order of May 22, 1961, staying proceedings in

Merlin A. Petersen

v.

Sausalito Savings and Loan Association, a corporation, et al.,

defendants in action No. 33416 of the Superior Court of the State of California in and for the County of Marin. On motion of respondent the proceedings were stayed “until an arbitration has been had in accordance with the terms of the agreement on file.” Petitioner Homestead Savings and Loan Association was

[699]

formerly named Sausalito Savings and Loan Association, a corporation, and is sued under that name in said action No. 33416. The real party in interest is Merlin A. Petersen, a contractor, who contracted with petitioner to furnish labor and materials for certain alterations and repairs to a building owned by petitioner in Sausalito, California. Said contract was dated August 15, 1960. It contained provisions for arbitration of any “disagreement arising out of this contract or from the breach thereof ...”

There is a dispute as to the performance of the contract. In his lien claim, which was filed for record November 23, 1960, Petersen alleges “that said contract has been fully performed on the part of claimant until his performance was prevented by the agents of the owner of said building to wit: on or about the 27th day of October, 1960.” Petersen claimed a lien for $18,999.78. Thereafter, and on December 6, 1960, Petersen filed an action against petitioner. Petersen’s complaint starts out with the usual allegations of a complaint to foreclose a mechanic’s lien, but in the last two paragraphs he alleges that his contract with petitioner provided for arbitration; that in the event of a dispute “ ‘. . . either party may forward to the other a written demand for arbitration, and in such demand such party shall name one arbitrator. The other party shall select one arbitrator, and the two so selected shall name a third.’ ” The complaint then “requests that this dispute be arbitrated; that the present proceeding be stayed pending completion of arbitration ...” and named Martin J. Jarvis as an arbitrator. His prayer is to the same effect, and adds that he be awarded the sum of $18,999.78, together with interest as provided by law, and his costs; that he be granted judgment on said sum; that said sum be adjudged a lien on the premises hereinbefore described. To this complaint petitioner filed an answer and cross-complaint. In the answer petitioner alleged “that the dispute involved herein is not arbitrable under the terms of the foregoing written contract, and therefore the plaintiff has no right to have the present proceedings stayed pending arbitration of this dispute.” The answer also alleges that Martin J. Jarvis is not qualified to act as an arbitrator because he has been the attorney for plaintiff.