Tuesday, December 30, 2014

No Demand Needed to Compel Arbitration

Hundai Amco Am., Inc. v. S3H, Inc., No. G049204 (D4d3 Dec. 17, 2014)

Section 1281.2 of the Code of Civil Procedure says that “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists[.]” The court here reads “a party thereto refuses to arbitrate such controversy” to mean that a defendant moving to compel arbitration needs to establish that it previously served an arbitration demand on the plaintiff. But the fact that a plaintiff has sued on open court is—at least implicitly—pretty obvious evidence of a refusal to arbitrate the dispute. So showing that a (futile) demand has been made is unnecessary.


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