Cook v. Superior Court

STONE, J. This is the second time petitioners have been before this court seeking either a writ of mandate or of prohibition or of certiorari concerning actions filed in Orange County and Los Angeles County. The controversy began with the execution of three contracts, (1) Plans and Specifications Agreement, (2) Construction Agreement, and (3) Financing Agreement, between petitioners and respondents Houston-California Investment Corporation and MacDonald Construction Company, for the construction of a convalescent hospital in Signal [623]Hill, Los Angeles County. Differences between the parties soon followed the signing of the three agreements, and actions were filed in Orange and Los Angeles Counties.

Petitioners, Cook and Young, first filed an action in Orange County, to which respondents Houston and MacDonald countered with a petition for an order directing arbitration pursuant to an arbitration clause in the construction agreement. The petition for arbitration was granted, arbitration was ordered, and all other proceedings were stayed. Thereafter several mechanics’ lien actions were filed in Los Angeles County, and petitioners filed cross-complaints in each one incorporating, among other matters, the allegations contained in their complaint in the Orange County action. They thereafter obtained an order dismissing their action in Orange County, but respondents were successful in having the dismissal set aside. The Los Angeles County Superior Court stayed all proceedings in that county, with the exception of one mechanics’ lien foreclosure action pending disposition of the Orange County case.

Petitioners then sought a writ setting aside the stay orders in both counties and setting aside the order for arbitration. Following a hearing on an order to show cause why a writ should not issue, we held that the Orange County Superior Court did not abuse its discretion in ordering arbitration, and that “petitioners must, in each action, seek to have the issues they contend are not within the purview of arbitration severed from the stay order, before either trial court can be said to have exercised its discretion, let alone abused it.” (Cook v. Superior Court, 240 Cal.App.2d 880, 888 [50 Cal.Rptr. 81].)

However, petitioners took a different tack; they returned to the Orange County Superior Court and moved for permission to file an amended and supplemental complaint embodying all of the issues and joining all parties within the scope of their Los Angeles County cross-complaints. They also added issues and parties beyond the scope of the cross-complaints in Los Angeles County. At the same time, petitioners moved to have the arbitration proceedings in Orange County terminated or dismissed as moot, relying in part upon the allegations of their proposed amended and supplemental complaint. The Orange County court denied petitioners’ motion to file the amended and supplemental complaint, and ordered the arbitration to proceed.