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Wagner Construction Co. v. Pacific Mechanical Corp.6/29/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. Introduction
Plaintiff, Wagner Construction Company, filed a verified complaint. Plaintiff then filed a petition to compel arbitration which was denied. Plaintiff appeals from the order denying its petition to compel arbitration arising out of a 1997 subcontract with defendant, Pacific Mechanical Corporation. The subcontract required plaintiff to provide shoring for a public work of improvement known as for the Moss Avenue Pump Station in Santa Monica ("the project"). We affirm the order denying plaintiff's petition to compel arbitration.
II. Background
Plaintiff filed the current action on July 22, 2004. The complaint contained causes of action for: contract breach (first); a common count for reasonable value of services (second); a violation of Public Contract Code, section 7107 (third); and a violation of Business and Professions Code, section 7108.5 (fourth). Plaintiff alleged the general contractor of the project, Montgomery Watson Americas, Inc., entered into a subcontract with defendant. Under the terms of the subcontract, defendant agreed to perform concrete shell and related work on the project. Defendant and plaintiff entered into a written subcontract on November 1997 to perform shoring. In 1998, plaintiff filed an action against defendant to enforce the claims asserted in the current action. While the 1998 action was pending, plaintiff and defendant became parties to a personal injury action in Contra Costa Superior Court relating to the project. Defendant tendered its defense and claims for indemnity in the personal injury action to plaintiff.
The complaint in this lawsuit further alleged that, in January 1999, plaintiff and defendant through their officers and directors agreed that the 1998 action would be dismissed and all applicable statutes of limitations would be tolled while the personal injury action was pending. In reliance on the agreement, plaintiff filed a dismissal without prejudice of the 1998 action. The personal injury action was resolved on April 16, 2003.
After the filing of the complaint in this action, on August 20, 2004, plaintiff filed a petition to compel arbitration. In support of the petition, plaintiff relied on Article 12 of the subcontract which provides: "Should any dispute arise out of this Subcontract, or its performance, either party may demand arbitration. The demand must be made in writing and served upon the other party and specify the arbitrator chosen by the party making the demand. Within ten (10) days after delivery of such demand, the other party shall appoint an arbitrator by written notice served on the party making the demand. The two arbitrators so chosen shall select a third arbitrator. The decision of any two arbitrators shall be binding and conclusive, shall be in writing and shall be a condition precedent to any right of legal action upon this contract."
Defendant opposed the petition to compel arbitration on two grounds. First, defendant argued plaintiff did not timely seek to arbitrate their dispute. Second, defendant argued plaintiff failed to show that the parties agreed in writing to toll the four-year statute of limitations which is required by sections 360 and 360.5 of the Code of Civil Procedure.
The trial court denied the petition to compel arbitration on the ground the claims were barred by app
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