BILL NUMBER: AB 456	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 12, 2011
	AMENDED IN ASSEMBLY  MARCH 17, 2011

INTRODUCED BY   Assembly Member Wagner

                        FEBRUARY 15, 2011

   An act 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:  action to record
and enforce a  mechanics  lean.  
liens. 
   Existing law requires a court in this state, upon motion of a
party to an action or proceeding, to stay 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. 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 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.
   Existing law provides that, in an action to record and enforce a
mechanics lien, a person does not waive any right of arbitration if
the person takes certain measures, including filing and serving a
motion to stay the action pending arbitration within 30 days, as
specified.
   This bill 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  , unless a party opposes the
motion and the court makes certain findings  . 
   Existing law specifies that a defendant's failure to file a
petition to arbitrate is a waiver of his or her right to arbitrate.
 
   This bill would specify that the defendant's failure to either
file the petition or to demand arbitration pursuant to an agreement
constitutes a waiver of his or her right to arbitrate. 
   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 1281.5 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   a motion  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  , provided that, if any party opposes
the motion to stay the action on the ground that the party objects to
arbitration of the dispute, the court shall determine whether the
claim of lien or any relevant issue, question, or dispute is subject
to arbitration before staying the action  . 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   demand  arbitration pursuant to 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. 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   a motion  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  , provided that, if any party opposes
th   e motion to stay the action on the ground that the
party objects to arbitration of the dispute, the court shall
determine whether the claim of lien or any relevant issue, question,
or dispute is subject to arbitration before staying the action 
. 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   demand  arbitration pursuant to 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.