Barsegian v. Kessler & Kessler: Trial Court Did Not Err In Denying Arbitration Motion Where Certain Defendants Moved to Compel, But Others Did Not

In Barsegian v. Kessler & Kessler (4/15/13) --- Cal.App.4th ---, the plaintiff sued a number of defendants, some of whom moved to compel arbitration, and some of whom did not. The trial court denied the motion to compel on grounds, inter alia, that the litigation against the non-moving defendants, arising from the same transaction, created a possibility of conflicting rulings on common issues of law or fact. 

The Court of Appeal affirmed, holding that the trial court properly declined to compel arbitration under Code of Civil Procedure section 1281.2(c), which provides that a court shall grant a motion to compel, unless it finds that: "A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact." 

The plaintiff's allegation that each defendant was the agent of the others was not a judicial admission that the non-moving defendants were not "third parties" under the statute. A judicial admission "is ordinarily a factual allegation by one party that is admitted by the opposing party." Because the moving defendants here did not admit that each defendant was the agent of the others and in fact planned to contest this allegation in arbitration, the allegation was not a judicial admission, and the moving defendants could not rely on it. Slip op. at 5-8. 

The opinion is available here.