Wagner Const. v. Pacific Mechanical 6/29/05 CA2/5

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2005 » Wagner Const. v. Pacific Mechanical 6/29/05 CA2/5

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B178996

Case Date: 10/26/2005

Preview:Filed 6/29/05 Wagner Construction v. Pacific Mechanical CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

WAGNER CONSTRUCTION COMPANY, Plaintiff and Appellant, v. PACIFIC MECHANICAL CORPORATION, Defendant and Respondent.

B178996 (Los Angeles County Super. Ct. No. SC081031)

APPEAL from an order of the Superior Court of Los Angeles County, Gerald Rosenberg, Judge. Affirmed. Marks, Golia & Finch, P. Randolph Finch, Jr., Jason R. Thornton, for Plaintiff and Appellant. McInerney & Dillon, Timothy F. Winchester, William A. Barrett, Alexander Bannon, for Defendant and Respondent.

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

2

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 fouryear statute of limitations which is required by sections 360 and 360.5 of the Code of Civil Procedure.1 The trial court denied the petition to compel arbitration on the ground the claims were barred by applicable statutes of limitations and plaintiff thus waived the right to arbitrate the dispute. Specifically, the court ruled the four-year limitation under section 337 barred the contract and the common count claims. Also, the court concluded, the court ruled plaintiff's statutory claims were barred by section 338, subdivision (a). In denying the petition, the trial court ruled that the statute of limitations was in essence one of waiver under section 1281.2, subdivision (a). In addition, the court concluded

All further statutory references are to the Code of Civil Procedure unless otherwise indicated. 3

1

plaintiff's tolling agreement argument was without merit in the absence of a written waiver of the statute of limitations as required by sections 360 and 360.5. Plaintiff filed a timely notice of appeal from the order denying the petition to compel arbitration.

III. DISCUSSION

Plaintiff asserts the trial court should not have denied the petition to compel arbitration because the statute of limitations had expired. Plaintiff argues the merits of the statute of limitations issue were to be decided by an arbitrator. We conclude that the trial court properly decided whether plaintiff waived the right to compel arbitration as a preliminary under section 1281.2, subdivision (a) which provides: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: . . [

Download Wagner Const. v. Pacific Mechanical 6/29/05 CA2/5.pdf