BILL NUMBER: AB 456 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Wagner
FEBRUARY 15, 2011
An act to amend Sections 1281.4 of, and to amend and repeal
Section 1281.5 of, the Code of Civil Procedure, relating to
arbitration.
LEGISLATIVE COUNSEL'S DIGEST
AB 456, as introduced, Wagner. Arbitration: self-executing
arbitration agreements.
(1) Existing law requires a court in this state, upon motion of a
party to an action or proceeding, to stay the action or proceeding if
another court has issued an order to arbitrate a controversy that is
also an issue pending before the state court until the arbitration
is conducted in accordance with the court's order or an earlier time
specified by the court. Existing law also requires a state court,
upon motion of a party, to stay an action or proceeding that is
pending before the court if an application has been made in another
court for an order to arbitrate a controversy that is an issue in the
action or proceeding pending in the court, until the court
determines whether to issue an order to arbitrate and, if the court
issues an order to arbitrate, until the arbitration is conducted in
accordance with the court's order or an earlier time specified by the
court.
This bill would require a court also to stay an action or
proceeding, upon motion of a party to the action, until arbitration
is conducted in accordance with a self-executing agreement to
arbitrate, as specified, or an earlier time specified by the court.
(2) Existing law provides that any person who records and enforces
a mechanic's lien does not waive any right of arbitration if the
person takes certain measures. Existing law also provides that a
defendant waives his or her right to compel arbitration if the
defendant does not file a petition to arbitrate at or before the time
the defendant answers a complaint to enforce a mechanic's lien.
This bill would provide that a defendant's right to arbitrate
would also be waived if the defendant fails to commence arbitration
pursuant to a self-executing agreement to arbitrate at or before the
time of filing an answer.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1281.4 of the Code of Civil Procedure is
amended to read:
1281.4. (a) If a court of competent
jurisdiction , whether in this State or not,
in any state has ordered arbitration of a controversy
which that is an issue involved
in an action or proceeding pending before a court of this
State state , the court in which
such the action or proceeding is
pending shall, upon motion of a party to such
the action or proceeding, stay the action or proceeding until
an the arbitration is had
conducted in accordance with the court's
order to arbitrate , or until
such an earlier time as
specified by the court specifies
.
If
(b) If an application has been
made to a court of competent jurisdiction , whether in this
State or not, in any state for an order to
arbitrate a controversy which that is
an issue involved in an action or proceeding
pending before a court of this State and such application is
undetermined state , the court in which
such the action or proceeding is
pending shall, upon motion of a party to such
the action or proceeding, stay the action or proceeding until
the application for court determines whether
to issue an order to arbitrate is determined
and, if arbitration of such controversy is
ordered, until an the arbitration is
had conducted in accordance with the
court's order to arbitrate ,
or until such an earlier time
as specified by the court specifies
.
(c) If the parties to an action or
proceeding before a court of this state have entered into a
self-executing agreement to arbitrate with respect to a controversy
that is an issue in the action or proceeding, the court in which the
action or proceeding is pending shall, upon motion of a party, stay
the action or proceeding until the arbitration is conducted in
accordance with the self-executing agreement to arbitrate, or until
an earlier time specified by the court.
If
(d) If the issue which is the
controversy subject to arbitration is severable, the stay may be with
respect to that issue only.
(e) As used in this chapter, an agreement to arbitrate is
self-executing if it provides for arbitration under rules
incorporated in the agreement.
SEC. 2. Section 1281.5 of the Code of Civil Procedure, as amended
by Section 1 of Chapter 22 of the Statutes of 2003, is amended to
read:
1281.5. (a) Any person who proceeds to record and enforce a claim
of lien by commencement of an action pursuant to Title 15
(commencing with Section 3082) of Part 4 of Division 3 of the Civil
Code, does not thereby waive any right of arbitration the person may
have pursuant to a written agreement to arbitrate, if, in filing an
action to enforce the claim of lien, the claimant does either of the
following:
(1) Includes an allegation in the complaint that the claimant does
not intend to waive any right of arbitration, and intends to move
the court, within 30 days after service of the summons and complaint,
for an order to stay further proceedings in the action.
(2) At the same time that the complaint is filed, the claimant
files an application that the action be stayed pending the
arbitration of any issue, question, or dispute that is claimed to be
arbitrable under the agreement and that is relevant to the action to
enforce the claim of lien.
(b) Within 30 days after service of the summons and complaint, the
claimant shall file and serve a motion and notice of motion pursuant
to Section 1281.4 to stay the action pending the arbitration of any
issue, question, or dispute that is claimed to be arbitrable under
the agreement and that is relevant to the action to enforce the claim
of lien. The failure of a claimant to comply with this subdivision
is a waiver of the claimant's right to compel arbitration.
(c) The failure of a defendant either to file a
petition pursuant to Section 1281.2 or to commence arbitration
pursuant to a self-executing agreement to arbitrate at or
before the time the defendant answers the complaint filed pursuant to
subdivision (a) is a waiver of the defendant's right to compel
arbitration.
(d) This section shall become inoperative on July 1, 2012, and, as
of January 1, 2013, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2013, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 3. Section 1281.5 of the Code of Civil Procedure, as amended
by Section 25 of Chapter 697 of the Statutes of 2010, is amended to
read:
1281.5. (a) Any person who proceeds to record and enforce a claim
of lien by commencement of an action pursuant to Chapter 4
(commencing with Section 8400) of Title 2 of Part 6 of Division 4 of
the Civil Code, does not thereby waive any right of arbitration the
person may have pursuant to a written agreement to arbitrate, if, in
filing an action to enforce the claim of lien, the claimant does
either of the following:
(1) Includes an allegation in the complaint that the claimant does
not intend to waive any right of arbitration, and intends to move
the court, within 30 days after service of the summons and complaint,
for an order to stay further proceedings in the action.
(2) At the same time that the complaint is filed, the claimant
files an application that the action be stayed pending the
arbitration of any issue, question, or dispute that is claimed to be
arbitrable under the agreement and that is relevant to the action to
enforce the claim of lien.
(b) Within 30 days after service of the summons and complaint, the
claimant shall file and serve a motion and notice of motion pursuant
to Section 1281.4 to stay the action pending the arbitration of any
issue, question, or dispute that is claimed to be arbitrable under
the agreement and that is relevant to the action to enforce the claim
of lien. The failure of a claimant to comply with this subdivision
is a waiver of the claimant's right to compel arbitration.
(c) The failure of a defendant either to file a
petition pursuant to Section 1281.2 or to commence arbitration
pursuant to a self-executing agreement to arbitrate at or
before the time the defendant answers the complaint filed pursuant to
subdivision (a) is a waiver of the defendant's right to compel
arbitration.
(d) This section shall become operative on July 1, 2012.