Filed 3/12/21 M&M Itach Group v. Burnett CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

M&M ITACH GROUP, INC.,

 Plaintiff and Respondent,

v.

BENJAMIN N. BURNETT et al.,

 Defendants and Appellants.

 G058395

 (Super. Ct. No. 30-2018-00995318)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Glenn R. 

Salter, Judge. Affirmed. 

Benjamin N. Burnett and Shelley C. Burnett in pro. per. for Defendants and 

Appellants.

The Law Office of Yossi Noudel and Yossi Noudel for Plaintiff and 

Respondent.
2

This case arises out of a construction dispute after a residential remodel. 

Contractor M&M Itach Group, Inc. (Contractor) and homeowners Benjamin and Shelley 

Burnett (collectively Homeowners or individually by their first names)

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entered into a 

contract for a construction project. Things did not go as planned, and in 2018, the 

Contractor filed a complaint against the Homeowners. In April 2019, the parties reached 

a settlement and executed a stipulated judgment, to be entered at the end of August 2019,

if Homeowners did not make the agreed upon payment. Just days before the deadline, 

Benjamin filed a petition to compel arbitration (Petition). The Homeowners did not make 

their payment and the stipulated judgment was then filed with the trial court in September 

2019. Thereafter, the court denied the Petition. We agree with the trial court that 

“[w]hatever may have been the merits of a petition for arbitration pre-settlement and 

pre-judgment, any right of the [Homeowners] to compel arbitration here has now been 

waived.” Accordingly, we affirm the court’s order denying the Homeowner’s Petition.

FACTS

In 2017, Contractor and Homeowners entered into a home improvement

contract (contract) to remodel the Homeowners’ residence, which contained an 

arbitration clause. In May 2018, Contractor filed a complaint against Homeowners 

asserting eight causes of action: breach of contract, services rendered, unjust enrichment, 

quantum meruit, open book account, foreclosure of mechanics’ lien, intentional 

misrepresentation, and negligent misrepresentation. At the root of the complaint was an 

allegation Homeowners breached the contract by failing to pay $92,715 for services 

rendered by Contractor. 

 On April 12, 2019, Homeowners signed a stipulated judgment. The 

judgment settled the matter between the parties and provided, “Judgment shall be entered 

against [Homeowners] and in favor of [Contractor] on the Complaint for damages in the 

1 We refer to the Homeowners individually by their first names for ease of 

reference and intend no disrespect.
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amount [of $70,000 plus interest]. [Contractor] shall not file this Stipulation with the 

Court nor pursue entry of [j]udgment and collection actions unless [Homeowners] fail to 

make the agreed payment . . . . [¶] . . . on or before August 30, 2019.” Both Homeowners 

signed the judgment. Homeowners did not pay Contractor the agreed upon amount. On 

September 10, 2019, Contractor filed the stipulated judgment with the trial court. 

On August 22, 2019, Benjamin filed a petition to compel arbitration. The 

trial court denied the petition, explaining: “[Benjamin] waived any right to arbitrate this 

matter. [¶] A defendant must raise the arbitration provision as an affirmative defense and 

must promptly seek to compel arbitration. . . . Here, no affirmative defenses were raised 

in [Benjamin’s] Answer, just a ‘reservation’ of the right to allege them later. Even his 

wife’s Answer did not raise any such affirmative defense even though she pled 31 

affirmative defenses. [¶] . . . [¶] Waiting four months after a stipulation for entry of 

judgment has been signed to first petition to compel arbitration is, on its face, too late and 

constitutes a waiver as a matter of law. [Citation.]”

DISCUSSION

Homeowners assert the trial court erred by denying the Petition. 

Specifically, they assert the court improperly allowed counsel for Contractor to testify 

and point to the fact the parties did not engage in discovery as proof the parties agreed to 

arbitrate the matter. We are not persuaded. The trial court properly denied the Petition.

I. Standing

As an initial matter, Contractor contends Shelley lacks standing in this 

appeal because only Benjamin, not Shelley, filed the Petition. We agree.

The petition lists only Benjamin as the petitioner. It refers to “petitioner” in 

the singular, and Benjamin alone signed it. Additionally, Benjamin’s declaration in 

support of the Petition states, “I am the Petitioner in this action,” and only Benjamin 

signed the attached exhibit including the arbitration agreement. Indeed, the trial court 

recognized Benjamin was the sole petitioner by referring only to him in its order. 
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Because Shelley did not file a petition to compel arbitration, or join in the Petition at 

issue, she was not aggrieved by the trial court’s order and therefore lacks standing in this 

appeal. (Code Civ. Proc., § 902 [“Any party aggrieved may appeal in the cases 

prescribed in this title”].)2 

II. Waiver of Arbitration Provision

Benjamin contends the trial court incorrectly denied his Petition. He

implies, through hypotheticals unsupported by legal or factual citations, that 

Homeowners were somehow coerced into signing the stipulated judgment. He also 

asserts the court erred by allowing Contractor’s counsel to testify3and because no 

discovery was conducted. His arguments have no merit.

Section 1281.2, provides in pertinent part as follows: “On petition of a 

party to an arbitration agreement alleging the existence of a written agreement to arbitrate 

a controversy and that a party to the agreement refuses to arbitrate that controversy, the 

court shall order the petitioner and the respondent to arbitrate the controversy if it 

determines that an agreement to arbitrate the controversy exists, unless it determines that: 

[¶] (a) The right to compel arbitration has been waived by the petitioner.” Accordingly, 

the right to arbitrate is not absolute and may be waived expressly or by implication. (St. 

Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195

(St. Agnes).)

While no specific waiver test exists, ““‘In the past, California courts have 

found a waiver of the right to demand arbitration in a variety of contexts, ranging from 

situations in which the party seeking to compel arbitration has previously taken steps 

2 All further statutory references are to the Code of Civil Procedure.

3 Benjamin asserts Contractor’s counsel was improperly allowed to “testify”

at the hearing on the Petition without being placed under oath or allowing Homeowners 

to “cross-examine” him. We have reviewed the reporter’s transcript. Counsel properly 

appeared for his client, not as a witness, and as an officer of the court did not need to be 

under oath and certainly could not be cross-examined.
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inconsistent with an intent to invoke arbitration [citations] to instances in which the 

petitioning party has unreasonably delayed in undertaking the procedure. [Citations.] 

The decisions likewise hold that the ‘bad faith’ or ‘willful misconduct’ of a party may 

constitute a waiver and thus justify a refusal to compel arbitration. [Citations.]’” 

[Citations.]” (St. Agnes, supra, 31 Cal.4th at p. 1196.) “In determining waiver, a court 

can consider ‘(1) whether the party’s actions are inconsistent with the right to arbitrate; 

(2) whether “the litigation machinery has been substantially invoked” and the parties 

“were well into preparation of a lawsuit” before the party notified the opposing party of 

an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to 

the trial date or delayed for a long period before seeking a stay; (4) whether a defendant 

seeking arbitration filed a counterclaim without asking for a stay of the proceedings; 

(5) “whether important intervening steps [e.g., taking advantage of judicial discovery 

procedures not available in arbitration] had taken place”; and (6) whether the delay 

“affected, misled, or prejudiced” the opposing party. [Citations.]’ [Citation.]”

(Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 992.) “Generally, the 

determination of waiver is a question of fact, and the trial court’s finding, if supported by 

sufficient evidence, is binding on the appellate court. [Citations.]” (St. Agnes, supra, 

31 Cal.4th at p. 1196.)

In this instance, the trial court correctly concluded Benjamin waived the 

arbitration provision. This waiver occurred on at least two grounds: conduct inconsistent 

with an intent to arbitrate and unreasonable delay by seeking enforcement close to the 

trial date. We address each in turn.

A. Conduct Inconsistent with an Intent to Arbitrate

First, Benjamin answered the complaint but did not plead his claimed right 

to arbitrate as an affirmative defense. “At a minimum, the failure to plead arbitration as 

an affirmative defense is an act inconsistent with the later assertion of a right to arbitrate. 

(Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 558.) Second, the parties 
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proceeded with litigation, engaged in settlement discussions, and executed a stipulated

judgment. This behavior is inconsistent with an intent to arbitrate. 

Finally, Benjamin claims the parties did not engage in discovery and asserts 

this fact is determinative in his favor. Contractor asserts in its briefing, without citation 

to the record, that it propounded discovery. It is unclear from the record whether the 

parties engaged in any discovery, and as a result, we cannot weigh this factor one way or 

another. In any event, contrary to Benjamin’s assertion, whether discovery was 

propounded is not, on its own, determinative. 

B. Unreasonable Delay

“‘[A] demand for arbitration must not be unreasonably delayed. . . . [A] 

party who does not demand arbitration within a reasonable time is deemed to have 

waived the right to arbitration. [Citations.]’” (Sobremonte, supra, 61 Cal.App.4th at 

p. 992.) Indeed, “a party’s unreasonable delay in demanding or seeking arbitration, in 

and of itself, may constitute a waiver of a right to arbitrate.” (Burton v. Cruise (2010) 

190 Cal.App.4th 939, 945 (Burton).)

In Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436,

446, a different panel of this court affirmed the trial court’s denial of a petition to 

arbitrate based upon waiver where defendant waited five months after the filing of the 

complaint to move to compel arbitration. Similarly, in Burton another panel of this court 

affirmed an order denying plaintiff’s petition to compel arbitration where plaintiff did not 

seek to enforce the arbitration agreement for 11 months, “taking action only weeks before 

the scheduled trial date.” (Burton, supra, 190 Cal.App.4th at p. 949.)

Benjamin filed the Petition nearly one year and three months into the

litigation, over four months after the stipulated judgment was signed, and approximately 

one week before the deadline for the filing of the stipulated judgment. Contractor’s 

briefing on appeal asserts the Petition caused it serious prejudice by not allowing it to 

enforce the judgment and the mechanic’s lien. Benjamin does not address this issue. On 
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these facts, however, “an egregious delay may result in prejudice. As the Supreme Court 

explained in St. Agnes, prejudice is typically found where ‘the petitioning party’s conduct 

has substantially undermined [the] important public policy [in favor of arbitration] or 

substantially impaired the other side’s ability to take advantage of the benefits and 

efficiencies of arbitration.’ [Citation.]” (Burton, supra, 190 Cal.App.4th at p. 947.)

DISPOSITION

The order is affirmed. Contractor shall recover its costs on appeal.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.