Legal Question in Real Estate Law in California

Re: arbitration vs jury hearing

Maybe filing an answer is not the appropriate response to the complaint. Maybe a motion to stay the lawsuit and compel arbitration is required. I haven't seen the lawsuit or the contract with the arbitration clause, so I'm guessing. It would be foolhardy for you to start filing stuff with the court without knowing what you are doing.

Re: arbitration vs jury hearing

Probably. If so, then by a formal Motion to Compel brought in the court action. Sounds like you should be hiring an attorney. Most people do not have the education, experience or skills to conduct complex litigation like real estate lawsuits. If this is in SoCal, and if you're serious about hiring counsel to handle this right, feel free to contact me.

Re: arbitration vs jury hearing

You need an attorney. I wish I could tell you more but this matter is complicated, and you need an attorney to explain a number of things to you. You may email my office.

Best,

Daniel Bakondi, Esq.

IMPORTANT:

No attorney-client nor confidential relationship is created through this communication. You may not rely in any way on this communication, and nothing herein constitutes legal advice nor legal opinion. Your issue may be time sensitive and may result in loss of rights if you do not obtain an attorney immediately.

Re: arbitration vs jury hearing

You need an attorney. I wish I could tell you more but this matter is complicated, and you need an attorney to explain a number of things to you. You may email my office.

Best,

Daniel Bakondi, Esq.

IMPORTANT:

No attorney-client nor confidential relationship is created through this communication. You may not rely in any way on this communication, and nothing herein constitutes legal advice nor legal opinion. Your issue may be time sensitive and may result in loss of rights if you do not obtain an attorney immediately.

Re: arbitration vs jury hearing

If you have not done so already, contact the other side's attorney and point out the arbitration clause and ask why that should not be controlling. Point out that if it has the standard language of being able to collect attorney fees for having to enforce the contract, your hiring an attorney to get the case dismissed and then arbitrated would [perhaps] come under that clause so his client will have to pay that portion of your attorney fees.

Re: arbitration vs jury hearing

Recent California case law holds that answering a complaint without either (1) raising the arbitration clause as an affirmative defense or (2) filing a petition under Code of Civil Procedure section 1281.2 to compel arbitration and stay the court proceeding will probably be treated as your waiver of the contractual arbitration clause.

So, you could probably get back into arbitration and out of court if you filed an answer IF you asserted the arbitration clause as a defense, but otherwise if you answered and didn't assert that defense, the other party can probably keep the case in court.

For a recent case, look up Dial 800 v. Fesbinder (2004) 118 Cal.App.4th at page 32. If the case were in Federal court, you might have a little better chance of overcoming the waiver and getting into arbitration than in California state courts.