swinerton builders notice of motion and motion to compel arbitration a

Cal. Super. - 1st Dist.May 7, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT'S NOTICE OF MOTION TO COMPEL ARBITRATION AND STAY PENDING LITIGATION Bennett J. Lee (Bar No. 230482) Daniel Sakaguchi (Bar No. 222722) VARELA, LEE, METZ & GUARINO, LLP 333 Bush Street, Suite 1500 San Francisco, California 94104 Telephone: 415-623-7000 Facsimile: 415-623-7001 E-Mail: blee@vlmglaw.com dsakaguchi@vlmglaw.com Attorneys for Defendant SWINERTON BUILDERS SUPERIOR COURT OF CALIFORNIA FOR THE CITY AND COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION 875 CALIFORNIA II, LLC, a Delaware limited liability company, Plaintiff, v. SWINERTON BUILDERS, a California corporation, Defendant. Case No.: CGC-20-588615 SWINERTON BUILDERS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION AND STAY PENDING LITIGATION Date: March 29, 2021 Time: 9:30 a.m. Dept.: 302, Law and Motion TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on March 29, 2021, at 9:30 a.m., or as soon thereafter as counsel may be heard, in Department 302 of the above-entitled Court, Swinerton Builders will and hereby does move the Court for an order compelling arbitration on the Complaint, and staying this action.1 This Motion is brought pursuant to Code of Civil Procedure §§ 1281.2 and 1281.4 on the grounds that a valid, enforceable and irrevocable written agreement exists between the Plaintiff and the Defendant that requires arbitration of the subject claims and that this litigation should be stayed pending the arbitration. 1 Code of Civil Procedure section 1281.7 states that a “petition pursuant to Section 1281.2 may be filed in lieu of filing an answer to a complaint.” ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 03/01/2021 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT'S NOTICE OF MOTION TO COMPEL ARBITRATION AND STAY PENDING LITIGATION This Motion is based on this Notice, the attached Motion, the Memorandum of Points and Authorities filed in support thereof, the Declaration filed in support thereof, the Request for Judicial Notice filed in support thereof, all records and proceedings in this action, and on such evidence or argument as may be presented to the Court in connection with the hearing on the Motion. MOTION TO COMPEL ARBITRATION Defendant Swinerton Builders (“Swinerton”) hereby moves the Court for an order compelling arbitration, and hereby alleges: Swinerton and 875 California II, LLC (“Grosvenor”) entered into a modified AIA Document A102-2007 Agreement dated October 26, 2016 (the “Agreement”). The Agreement contains a dispute resolution procedure that provides for arbitration of disputes “arising out of or relating to” the Agreement. All claims alleged in Grosvenor’s Complaint (the “Complaint”) against Swinerton are subject to the agreement to arbitrate contained within the Agreement. MOTION TO STAY THE PENDING LITIGATION Defendant Swinerton moves the Court for an order staying any non-arbitrable claims in this litigation while Swinerton and Grosvenor proceed to arbitration, and hereby allege: Grosvenor’s causes of action against Swinerton are all arbitrable given the broad “arising out of or relating to” language of the Subcontract. Staying this cause of action pending arbitration would therefore avoid duplication of efforts because the arbitration would resolve the merits of Grosvenor’s lawsuit. Accordingly, staying this litigation is appropriate and efficient. (See, e.g., Mission Viejo Emergency Med. Assocs. v. Beta Healthcare Grp., supra, 197 Cal. App. 4th 1146, 1153 [“California has a strong public policy in favor of arbitration as an expeditious and cost-effective way of resolving disputes.”].) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT'S NOTICE OF MOTION TO COMPEL ARBITRATION AND STAY PENDING LITIGATION Dated: March 1, 2021 VARELA, LEE, METZ & GUARINO, LLP By: /s/ Daniel Sakaguchi Bennett J. Lee Daniel Sakaguchi Attorneys for Defendant SWINERTON BUILDERS