Angelakis v. Hennigan CA5

Filed 3/12/13 Angelakis v. Hennigan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

GUS ANGELAKIS, F064956 Plaintiff and Respondent, (Super. Ct. No. CV002289) v.

J. MICHAEL HENNIGAN et al., OPINION Defendants and Appellants.

APPEAL from an order of the Superior Court of Merced County. Donald J. Proietti, Judge. Parish & Small, William H. Parish and Kyle A. Hampton for Defendants and Appellants. Downey Brand, Anthony L. Vignolo, Jenny Dione Dennis; and Lawrence J. Koncz for Plaintiff and Respondent. -ooOoo- Appellants, J. Michael Hennigan and Jack A. Smith, challenge the trial court‟s denial of their motion to compel mediation and arbitration of their disputes with

respondent, Gus Angelakis, pursuant to the operating agreement executed by Hennigan and Angelakis. The trial court concluded that arbitration could not be compelled because the agreement provides that arbitration will commence only “„if all parties agree to arbitration.‟” The court further held that it did not have jurisdiction to compel the parties to mediate. Appellants argue that, in light of the policy favoring arbitration, the agreement should be interpreted to grant each party the unilateral right to compel arbitration. According to appellants, the clause requiring the parties to agree to arbitration refers to the inclusion of additional parties and the possibility of a speedier commencement of arbitration. Although arbitration of disputes is favored, parties will not be compelled to arbitrate disputes that they have not agreed to arbitrate. Here, giving the contract language its usual and ordinary meaning, we conclude that both parties must agree to arbitrate. Further, since mediation is voluntary and nonbinding, there is no justification for compelling the parties to mediate. Accordingly, the order will be affirmed. BACKGROUND Angelakis started farming in the 1950‟s and acquired significant real property. Hennigan began serving as Angelakis‟s personal legal counsel in 1974 and, over the years, the two became friends. In 2005, Hennigan and Angelakis formed Quail H Farms, LLC (Quail H), a farming entity, and executed an operating agreement. At that time, Hennigan and Angelakis were the only members of Quail H. This operating agreement contains the following mediation and arbitration clause: