BILL NUMBER: AB 456 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 17, 2011
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 amended, Wagner. Arbitration: self-executing
arbitration agreements. action to record and enforce a
mechanics lean.
(1) Existing
Existing law requires a court in this state, upon
motion of a party to an action or proceeding, to stay the
an 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 . A state court is
also required to stay an action 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 other 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
Existing law provides that any person who
records and enforces , in an action to record and
enforce a mechanic's mechanics
lien , a person 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 , including filing and
serving a motion to stay the action pending arbitration within 30
days, as specified .
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 would authorize
the claimant to make a motion to stay the action pending arbitration
even if an application for an order to arbitrate has not been filed
.
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 in any state has
ordered arbitration of a controversy that is an issue in an action
or proceeding pending before a court of this state, the court in
which the action or proceeding is pending shall, upon motion of a
party to the action or proceeding, stay the action or proceeding
until the arbitration is conducted in accordance with the court's
order, or until an earlier time specified by the court.
(b) If an application has been made to a court of competent
jurisdiction in any state for an order to arbitrate a controversy
that is an issue in an action or proceeding pending before a court of
this state, the court in which the action or proceeding is pending
shall, upon motion of a party to the action or proceeding, stay the
action or proceeding until the court determines whether to issue an
order to arbitrate and, if arbitration is ordered, until the
arbitration is conducted in accordance with the court's order, or
until an earlier time specified by the court.
(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.
(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 1. 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. Notwithstanding Section 1281.4, the claimant may make
a motion to stay the action pending arbitration even if none of the
parties to the action has filed an application for an
order to arbitrate the controversy. 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 for
a court order to arbitrate pursuant to Section 1281.2 or to
commence arbitration pursuant to a self-executing
an 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. SEC. 2. 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. Notwithstanding Section 1281.4, the claimant may make
a motion to stay the action pending arbitration even if none of the
parties to the action has filed an application for an order to
arbitrate the controversy. 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 for
a court order to arbitrate pursuant to Section 1281.2 or to
commence arbitration pursuant to a self-executing
an 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.
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