Appellants’ Argument That There Was An “Implied Oral Understanding” Didn’t Cut It With The Court Of Appeal
The arbitration clause in our next case began: “NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ‘ARBITRATION’ PROVISION DECIDED BY NEUTRAL ARBITRATION . . . “ No party initialed this provision. Now that’s a problem. Trial court denied defendants’ motion to compel arbitration, and scrappy defendants appealed. Lake Balboa Investments, LLC v. J&J Mayfair, LLC, Case No. B254449 (2/7 Sept. 17, 2014) (Zelon, Woods, Segal) (unpublished).
Appellants appeared to argue “that the parties to the agreement waived the initialing condition of the arbitration provision ‘by implied oral understanding.’” However, the trial court and the Court of Appeal didn’t buy this argument, because the declaration upon which it was based was conclusory, i.e., “devoid of any specific facts demonstrating how this conclusion was reached.” A beefed-up declaration filed as part of defendants’ reply in the trial court “suffer[ed] from the same infirmities” as the original declaration, “with the additional deficiency that it was submitted in conjunction with the reply brief, precluding the responding party from addressing it.”
Marc sends his greetings to appellants’ attorney, Michael B. Montgomery. Michael, Marc, and Barbara Lichman were attorneys in a jury trial in Victorville some years ago, and it was a memorable experience.