ORIGINAL PROCEEDINGS: Petition for Writ of Mandate. Granted. (Super. Ct. No. TCV1479).
The opinion of the court was delivered by: Cantil-sakauye, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A dispute arose between petitioner Zari Mansouri and her homeowners' association, the Fleur du Lac Estates Association (Association), after Mansouri remodeled her condominium's patio. The Association obtained a court order compelling arbitration of the dispute under an arbitration provision contained in the Second Restated Declaration of Covenants, Conditions and Restrictions for the Association (CC&R's). The trial court awarded attorney fees to the Association for its expense in bringing the petition to compel arbitration. We granted an alternative writ in this mandamus proceeding to consider (1) whether the arbitration provision in the CC&R's is unenforceable and unconscionable; (2) if the arbitration provision is valid, whether this dispute falls outside of the scope of the arbitration provision; and (3) whether the Association complied with the applicable statutory requirements for a petition to compel arbitration. We conclude the arbitration provision is enforceable, is not unconscionable, and is applicable. However, in the published portion of this opinion, we conclude a party seeking to compel arbitration under Code of Civil Procedure section 1281.2 (section 1281.2) must establish it demanded arbitration under the parties' arbitration agreement and that the other party refused to arbitrate under the agreement before it is entitled to an order granting a petition to compel such arbitration. As the Association here failed to show it requested Mansouri to arbitrate under the arbitration provision of the CC&R's and that Mansouri refused to arbitrate under such provision, its petition to compel such arbitration should have been denied. We will issue a writ of mandate requiring the trial court to vacate its order compelling arbitration and awarding attorney fees and to enter a new order denying the Association's petition.
Mansouri is the owner of a condominium unit within the Fleur du Lac Estates, located by Lake Tahoe in Homewood, California. She is also a member of the Association. In December 2006, Mansouri submitted an "Architectural Control Improvement Plan Application" (Application) to the Association's Architectural Control Committee (ACC) seeking to remodel several areas of the interior of her condominium, add two skylights, enclose an existing covered porch, add a fire pit to the patio and add a masonry barbeque to the existing patio. Mansouri's Application was approved by the ACC and by two-thirds of the membership of the Association as required by the CC&R's.
The Association contends Mansouri submitted plans with her Application that showed the location of both the proposed barbeque and fire pit to be within the existing patio footprint. The Association contends a tarp concealed some of Mansouri's subsequent construction work and that it later learned Mansouri had extended the coverage of her patio by more than 200 square feet beyond the approximately 500 square feet approved and had failed to locate the fire pit and barbeque within the previously existing patio footprint. The Association claims Mansouri's new patio creates new land coverage without approval of the Tahoe Regional Planning Agency (TRPA) or the Association's Board of Directors, encroaches and obstructs the common area of the condominiums in violation of the CC&R's, interferes with a drainage channel constructed by the Association, interferes with the privacy of neighboring condominium units, and fails to use approved construction materials.
Mansouri denies she submitted any plans with her Application. She claims that after the approval of her Application, she developed specific plans for her remodeling based on numerous discussions between her, her architect, her designer, the Association's then General Manager, Rob Evans, and the Property Manager for the Association, Daryl Partridge. She subsequently submitted detailed plans for her proposed work in early June 2007 to Evans.
Evans responded to Mansouri's submittal of plans by e-mail informing Mansouri the fire pit approved by the ACC was to be completely within her existing patio, that no additional patio coverage was approved, that her submitted plan showed an extension of her patio to include a fire pit, which was not approved, and that the maximum patio size was 518 square feet. Mansouri replied that she had been in contact with Evans and Partridge and had been told there was room for additional coverage. Through a series of several more e-mails, Mansouri and Evans agreed to meet at her condominium the next day to discuss the matter.
Mansouri claims that when Evans and Partridge met with her, her contractor, and her architect the next day, they agreed to a location for her fire pit outside the existing patio footprint by spray painting its proposed location on the ground. She also claims Partridge told her she was permitted a little more coverage than already existed and that he measured and staked out the additional boundaries of the allowable patio coverage. Partridge told her he would work with her and monitor her construction to ensure it was within the coverage limits. Mansouri contends Evans told her it would not be necessary to submit another application to the ACC.
Mansouri claims that Evans and/or Partridge inspected her construction work thereafter on at least a weekly basis, communicated and met with her, her contractor, and architect regarding the construction on numerous occasions, and provided her specific directions for the work, which she followed. Mansouri denies any concealment of her patio construction work. She claims neither Evans, Partridge nor anyone else acting on behalf of the Association communicated to her before the completion of her patio improvements that she would have to resubmit plans for her patio improvements to the ACC for approval or that she was in violation of the coverage limits.
In July 2008, the Association, through its attorney, notified Mansouri that her completed patio improvements did not conform to the plans approved by the ACC. The letter requested Mansouri remove her patio improvements and conform the patio to the plan approved by the ACC or submit a revised plan for ACC review and approval.
Mansouri's attorney responded that Mansouri's patio improvements were constructed as approved by the Association.*fn2 He also asserted both estoppel and waiver were applicable if the improvements were noncompliant with the Association's approval. More specifically he argued that: (1) the Association's approval of Mansouri's Application was sufficient to approve her patio as built, (2) the patio as built substantially conformed to her June drawings, which the Association was deemed to have approved under section 9.2 of the CC&R's, (3) the patio as built was approved by the Association's authorized agents, (4) the Association was estopped from enforcing the maximum allowable patio coverage and remedying any noncompliance between what it formally approved and what was built, and (5) the Association waived its right to enforce the maximum patio coverage.
In September 2008, counsel for the Association wrote to Mansouri's counsel, requesting Mansouri agree to submit the dispute to binding arbitration before a single arbitrator, unilaterally pre-selected by the Association. The letter indicated that if Mansouri did not agree, the Association would file "a court action for injunctive and declaratory relief and attorneys fees to enforce [her] compliance." Mansouri refused the Association's request and offered to mediate the dispute instead. The Association rejected mediation unless Mansouri would agree to submit to binding arbitration if the mediation proved unsuccessful. Mansouri did not agree.
When no agreement was reached, the Association filed a petition in the trial court to compel Mansouri to arbitrate the dispute under section 16.10 of the CC&R's. Section 16.10 provides: "If the Association and one or more Owners are unable to agree on the meaning or effect of any part of [the CC&R's], such dispute shall be conclusively settled by arbitration pursuant to the commercial arbitration rules of the American Arbitration Association. The Association shall name one arbitrator, the Owner shall name a second arbitrator, the two arbitrators so named shall name a third; and the three arbitrators so chosen shall resolve the dispute. The decision of the arbitrators shall be binding and conclusive upon the Owners and the Association." The Association's petition to compel arbitration sought attorney fees pursuant to section 16.9 of the CC&R's and Civil Code section 1354.
The trial court granted the Association's petition to compel arbitration and awarded the Association $8,283.50 in attorney fees.
I. THE CC&R'S ARBITRATION SECTION 16.10 IS ENFORCEABLE AND NOT UNCONSCIONABLE IN THIS SITUATION
"Although California has a strong policy favoring arbitration [citations], our courts also recognize that the right to pursue claims in a judicial forum is a substantial right and one not lightly to be deemed waived. [Citations.] Because the parties to an arbitration clause surrender this substantial right, the general policy favoring arbitration cannot replace an agreement to arbitrate. [Citations.] Thus, the right to compel arbitration depends upon the contract between the parties, [citations], and a party can be compelled to submit a dispute to arbitration only where he has agreed in writing to do so. [Citation.]" (Marsch v. Williams (1994) 23 Cal.App.4th 250, 254-255.)
Code of Civil Procedure section 1281 (section 1281) provides: "A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract."
We apply an independent standard of review to the question of whether an arbitration agreement is legally enforceable, applying general principles of California contract law. (Thompson v. Toll Dublin, LLC (2008) 165 Cal.App.4th 1360, 1369 (Thompson); Kleveland v. Chicago Title Ins. Co. (2006) 141 Cal.App.4th 761, 764.) "Unconscionability is a question of law subject to de novo review, `although ...