Petition
(Compel Contractual Arbitration and Stay Pending Civil Action) (CA)

Summary

This template is a petition for an order by a California superior court to compel an opposing party to arbitrate a dispute that is subject to an enforceable agreement to arbitrate and to stay a related pending civil action. This template also includes a notice of hearing on the petition. This template includes practical guidance, drafting notes, and alternate clauses. For a full listing of key content covering motion practice in California state court litigation, see Motion Practice Resource Kit (CA). For a template petition to compel contractual arbitration of a dispute when there is no related pending civil action, see Petition (Compel Contractual Arbitration) (No Action Pending) (CA). A petition to compel arbitration must "be heard in a summary way in the manner and upon the notice provided by law for the making and hearing of motions." Cal. Code Civ. Proc. § 1290.2. Thus, a petition to compel arbitration should generally follow the format for a noticed motion but should be denoted as a petition. See Cal. Code Civ. Proc. § 1290.2; Cal. Rules of Ct., Rules 3.1103(a)(2), 3.1110 et seq. For detailed discussion of motion format generally, see Motion Practice: Drafting, Serving, and Filing Noticed Motions (CA). See also Formatting Rules in Court Checklist (CA). The petition should be accompanied by: • A notice of hearing on the petition (see Cal. Code Civ. Proc. § 1290.4; Cal. Rules of Ct., Rule 3.1112(a)(1)), which is included in this template • A memorandum in support of the petition, as discussed below (see Cal. Rules of Ct., Rules 3.1112(a)(3), 3.1113) • A copy of the arbitration agreement, unless its provisions are set forth verbatim in the petition (see Cal. Rules of Ct., Rule 3.1330) and • Any affidavits or declarations or other documentary evidence needed to support factual assertions made in connection with the petition (see Cal. Rules of Ct., Rules 3.1112(b), 3.1115) The accompanying memorandum should contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the law as applied. See Cal. Rules of Ct., Rule 3.1113(b). The statement of facts, supported by declarations as necessary, should show the existence of an agreement to arbitrate and the responding party's refusal to do so. See Cal. Code Civ. Proc. § 1281.2. The party opposing arbitration has the burden of raising and proving any defenses to enforcement of the agreement, including lack of arbitrability, thus the petition and supporting memorandum need not necessarily address legal issues concerning the enforceability of the agreement and arbitrability of the issues in dispute. See Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal. 4th 394, 413 (1996) (burden of proof re: defenses); Laymon v. J. Rockcliff, Inc., 12 Cal. App. 5th 812, 820 (2017) (burden of proof re: arbitrability). Nevertheless, consider raising and countering potential arguments that the responding party is likely to make concerning enforceability of the agreement or arbitrability of the issues in dispute, and especially include facts supporting your position in any declarations. If you decide not to address these issues in the memorandum accompanying the petition, be prepared to address them at the hearing on the petition. The memorandum should comply with the other format requirements set forth in Cal. Rules of Ct., Rule 3.1113. For discussion, see Motion Practice: Drafting, Serving, and Filing Noticed Motions (CA). The petition should be filed in the pending civil action that involves the arbitrable controversy. See Cal. Code Civ. Proc. § 1292.4. Any motion to stay the action pending completion of arbitration must also be made in that action. See Cal. Code Civ. Proc. § 1292.8. The petition to compel arbitration may be filed in lieu of filing an answer to the complaint in the pending action. If the petition is denied, the petitioning defendant must then file an answer or otherwise plead to the complaint within 15 days after denial of the petition. Cal. Code Civ. Proc. § 1281.7. Alternatively, you may answer the complaint within the normal time for response, allege the existence of the arbitration agreement as an affirmative defense, and file the petition to compel arbitration and stay the action within a reasonable time thereafter. For discussion of procedure regarding answers, see Answering the Complaint (CA). The petition and accompanying documents must be served on the respondent(s) at least 10 days before the date set for the hearing on the petition. See Cal. Code Civ. Proc. § 1290.2. (Note this is a shorter notice period than the 16-day period required for noticed motions generally. See Cal. Code Civ. Proc. § 1005(b).) If service is made on an out-of-state respondent by mail as provided in Cal. Code Civ. Proc. § 1290.4(b), the petition may not be heard until at least 30 days after the date of service (i.e., service must be made at least 30 days before the hearing date). See Cal. Code Civ. Proc. 1290.4(b)(2). For a full listing of key content covering fundamental civil litigation tasks throughout a California state court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (CA). For further detailed discussion on petitions to compel arbitration, see Petition to Compel Arbitration and Stay Civil Action Pending Arbitration: Filing and Opposing the Petition (CA).