La Pietra v. Freed
| Decision Date | 04 December 1978 |
| Citation | 87 Cal.App.3d 1025,151 Cal.Rptr. 554 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Frank M. LA PIETRA et al., Plaintiffs and Appellants, v. Eric FREED et al., Defendants and Respondents. Civ. 16822. |
Ronald L. M. Goldman & Associates, and Ronald L. M. Goldman, Marina Del Rey, for plaintiffs and appellants.
Charles C. Renshaw, II, Escondido, for defendants and respondents.
*
On May 21, 1976, plaintiffs Frank M. La Pietra and Wanda J. La Pietra entered into a building construction contract with the defendant, Eric Freed, dba Creative Environments. Under the agreement Freed was to construct a single family residence for the La Pietras.
In late February or early March of 1977 a dispute arose between the parties.
Paragraph 16 of the agreement provides:
"Any controversy, or claim arising out of or relating to this contract, or the breach thereof shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof."
Paragraph 17 of the agreement provides that if a party is required to bring an action to enforce any of the terms thereof, the successful party shall be awarded attorney's fees.
On March 7, 1977, Freed demanded arbitration of that dispute. The demand was made again on March 23, 1977. On May 10, 1977, Freed filed formal demand with the American Arbitration Association and mailed a copy to the La Pietras. On May 16, 1977, the La Pietras acknowledged receipt of the demand.
On May 16, 1977, the La Pietras filed a complaint for damages for breach of building contract in the superior court.
On May 18, 1977, two days after the La Pietras had received formal demand for arbitration, they filed an amended complaint in the superior court and set a hearing in court for prejudgment attachment.
On May 19, 1977, American Arbitration Association acknowledged receipt of Freed's demand for arbitration by a letter to the La Pietras; the La Pietras received the letter on May 20, 1977.
Receipt of La Pietras' answer to demand for arbitration and counterclaim dated May 25, 1977, was acknowledged by American Arbitration Association on May 27, 1977.
On May 26, 1977, Freed mailed to the La Pietras his notice of motion to compel arbitration, to dismiss complaint, and to stay further proceedings. The notice of motion along with Freed's answer and cross-complaint were filed June 1, 1977.
On June 9, 1977, the trial court granted Freed's motion to compel arbitration, stayed all proceedings in this action until further order and awarded Freed $300 in attorney's fees and $40.50 in costs pursuant to paragraph 17 of the construction contract.
The La Pietras appeal from the order awarding attorney's fees and costs.
Freed contends that the La Pietras, in breach of the construction contract, refused to arbitrate the matter, wrongfully brought the complaint for damages and sought abuse of processes of the court by seeking a prejudgment attachment. The most significant fact, he alleges, is that two days after acknowledging his formal demand for arbitration, the La Pietras persisted, in violation of the contract, in going forward with legal action. As a result he was forced to incur costs and attorney's fees to compel the La Pietras to arbitrate, and to stay the proceeding pending the outcome of the demanded arbitration hearing. Freed admits that prior to the June 9 hearing, he had received notice of La Pietras' answer to demand for arbitration but argues that at no time did the La Pietras abandon their attempt to proceed in court and to process their motion for attachment faced with his responsive pleadings. By that time, Freed, he states, had already incurred liability to his attorney for fees.
La Pietras' first contention is that Freed's motion to compel arbitration and for attorney's fees was in fact moot and premature.
Section 7 of the Construction Industry Arbitration Rules (Exh. B) provides:
The La Pietras filed their original complaint with the court on the same day they received notice and a copy of Freed's demand for arbitration from Freed's attorney and prior to receipt of notice of any such demand from the American Arbitration Association. Notice of such demand from the American Arbitration Association was received on May 20, 1977; the filing by the La Pietras on May 27, 1977, of their answer to the demand and counter-claim was timely under the rules of the association.
The earlier letters from Freed's counsel to La Pietras' counsel cannot be construed as initiating the arbitration. The contract provided that arbitration shall be "in accordance with the Rules of the American Arbitration Association" and such rules encompass the entire procedure for the initiation and conduct of arbitration including demand.
We find Freed's motion to compel arbitration was premature in that the La Pietras voluntarily agreed to...
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...a petition to compel arbitration is not appealable. Cal.Code Civ.Proc. Sec. 1294 (1982); see, e.g., La Pietra v. Freed, 87 Cal.App.3d 1025, 1031, 151 Cal.Rptr. 554, 557 (1978).4 See United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United......
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