Reilly v. Cowitt
Filed 10/5/10 Reilly v. Cowitt CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FOUR
MARK REILLY et al.,
Plaintiffs and Respondents,
v.
RICHARD L. COWITT et al., as
Trustees, etc.,
Defendants and Appellants.
B220439
(Los Angeles
County
Super. Ct.
No. BC392647)
APPEAL from
an order of the Superior Court
of Los Angeles
County, John A. Kronstadt, Judge. Affirmed.
Law Offices
of Frances L. Diaz and Frances L. Diaz for Defendants and Appellants.
Snyder ♦
Dorenfeld, David K. Dorenfeld and Michael W. Brown for Plaintiffs and
Respondents.
_____________________________
This is an appeal from the denial of a petition to compel arbitration. The trial court found that appellants waived
their right to arbitrate. We agree and
affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
In July
2005, respondents Mark Reilly and Robin Morselli purchased a single family home
in Agoura Hills from appellants Richard L. Cowitt and Judith A. Cowitt,
individually and as cotrustees of the Richard and J.A. Cowitt Family
Trust. The standard form residential
purchase agreement published by the California Association of Realtors was used
for the transaction. This agreement
contained a provision for alternative dispute resolution. The parties agreed to mediate any dispute
before resorting to arbitration or court action, and pursuant to a separately
initialed arbitration provision, they agreed that any dispute not resolved by
mediation would be submitted to neutral binding arbitration.
In June of
the following year, respondents notified appellants and the real estate agents
of various problems with the property, including drainage issues and excessive
noise from neighbors. They asserted
these were defects which should have been disclosed, but were not. Respondents made informal efforts to resolve
the dispute, but ultimately retained attorney Brian Kahn to assist them.
In December
2006, Mr. Kahn wrote a letter to Frances Diaz, appellants' counsel, setting out
the problems with the property and demanding mediation. After several telephone conversations, an
informal mediation session was scheduled for March 2007, then was rescheduled
for April 4, 2007. The mediation was conducted but no settlement
resulted.
The
attorneys exchanged several emails and telephone calls over the next few
months. On July 24, 2007, Mr. Kahn sent a letter to Ms. Diaz
demanding arbitration. She responded
that the arbitration demand was premature because there had not been a
mediation with a professional mediator, as required under the purchase
agreement. Mr. Kahn responded by letter
that he and respondents considered the April mediation sufficient to satisfy
the contract requirements. Despite this
position, he proposed that appellants select a mediator from an enclosed
list. Ms. Diaz agreed to the use of
Deborah Rothman as mediator. On September 26, 2007, Mr. Kahn sent a
letter to Ms. Diaz regarding Ms. Rothman's availability in November or
December. The mediation was never
scheduled. According to Mr. Kahn, Ms.
Diaz never responded to his September letter.
According to appellants, respondents failed to arrange the mediation.
Respondents
relieved Mr. Kahn and retained new counsel.
On June 13, 2008,
respondents filed this action against appellants, their real estate agents,
respondents' real estate agent, real estate broker, and the home inspector
hired by respondents.
On October 21, 2008, the matter came on
for a case management conference before Judge (now Justice) Elizabeth
Grimes. Counsel for respondents did not
appear. Ms. Diaz appeared for
appellants. Counsel for defendant Coldwell
Banker requested a continuance because its cross-complaint had not yet been
answered and there was a defendant who had not yet been served. Ms. Diaz agreed: â€
| Description | This is an appeal from the denial of a petition to compel arbitration. The trial court found that appellants waived their right to arbitrate. Court agree and affirm the order. |
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