Failure to File a Motion to Compel Arbitration Was Fatal.
Losers in Duke Kelso Constr. v. Silva, Case No. H036879 (6th Dist. Mar. 26, 2013) (unpublished) must have felt good about their chances on appeal under a broadly worded fees clause, where the winner litigated rather than pursued contractually-mandated arbitration. The problem was that the Owners being sued by the winning Contractor adopted the waiver of the arbitration remedy by failing to file a motion to compel arbitration. (Kalai v. Grey, 109 Cal.App.4th 768, 773-774 (2003).) Unlike the mediation condition precedent CAR-form clauses, there was no disqualification penalty if arbitration was not sought under the parties’ contract. Fee recovery award affirmed.