By Considerably Expanding Scope Of Complaint, Party Might Have Reopened Opponent’s Right To Arbitrate That Has Been Waived – But It Didn’t Happen Here
Defendants appealed the trial court’s denial of their petition to arbitrate, and their appeal from an order appointing a referee. Boschetti v. Pacific Bay Investments, Inc., et al., No. A134195 (1st Dist. Div. 4 Jan. 30, 2014) (Rivera, Ruvolo, Reardon) (unpublished). The Court of Appeal affirmed, because defendants had delayed, and in the meantime, “substantially invoked” the machinery of litigation.
The interesting point is that by amending his complaint and substantially expanding the scope of his claims, plaintiff risked reviving defendant’s right to arbitrate: “See Keating v. Superior Court (1982) 31 Cal.3d 584, 607, reversed on another ground in Southland Corp. v. Keating (1984) 465 U.S. 1 [where amended complaints “considerably expanded” scope of pleadings, trial court could properly find lack of waiver of right to arbitrate interrelated claims in original complaints].).” (Slip Op. at 8). However, the expansion of claims here did not revive a right to arbitrate, because there were arbitrable claims in the earlier complaint that were waived, and the same properties were involved in the earlier complaint and the amended complaint.
As for the order appointing the referee, that is an interlocutory rather than an appealable order. Defendants failed to ask that their appeal be treated as a writ of mandate, and the Court of Appeal declined to treat the appeal as a writ. End of story, for now.