JSM TUSCANY v. SUPERIOR COURT OF LOS ANGELES COUNTY





Filed 3/29/11




CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JSM TUSCANY, LLC et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondents; NMS PROPERTIES, INC., et al., Real Parties in Interest.

B227360 (Los Angeles County Super. Ct. No. BC432260)

ORIGINAL PROCEEDINGS in mandate. Kevin C. Brazille, Judge. Petition denied with directions.
Tourtelot & Butler and Robert H. Tourtelot for Petitioners.
No appearance for Respondents.
Manly & Stewart, John C. Manly and Morgan A. Stewart for Plaintiffs and Real Parties in Interest.
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In these writ proceedings, we consider the trial court's denial, without prejudice, of petitioners'[1] motion to compel arbitration pursuant to the provisions of three separate, but substantially identical, real estate purchase contracts. Petitioners are twelve of the twenty‑seven defendants named in the first amended complaint (the operative pleading before us) filed by the four plaintiffs, N. Neil Skekhter; NMS Properties, Inc.; 15394 NM, LLC; and NMS/JSM San Lorenzo, LLC.[2]
Plaintiffs' complaint, although pleading some sixteen causes of action, essentially seeks recovery of damages and other relief from the several defendants for their breach of the three real estate sales contracts (hereinafter, PSAs) and the failure of some of the defendants to meet the requirements of three related Deed Restriction agreements that those defendants had entered into with the City of Santa Monica, and as to one of which two of the plaintiffs, 15394 NM and NMS/JSM San Lorenzo, claim to be third-party beneficiaries.
The three PSAs each contained a broad arbitration clause which the petitioners moved to enforce. The trial court denied the motion to compel arbitration on the grounds that not all of the plaintiffs and only a small number of the defendants were actually signatories to the PSAs. In addition, the Deed Restriction agreements entered into by several of the defendants and the City of Santa Monica contained no arbitration clause, and the trial court concluded that those agreements were not dependent on or intertwined with the PSAs, thus giving rise to non-arbitrable disputes.
After reviewing the record in this factually complex matter, we conclude that the trial court did not have before it sufficient information to determine whether plaintiffs should be compelled to arbitrate and therefore properly denied the motion to compel without prejudice. We will therefore deny the petition and remand the matter with directions.
FACTUAL AND PROCEDURAL BACKGROUND[3]
Preliminarily, we note that while, in broad outlines, this case appears to be a dispute between Jones and Jones-related entities on one side and Shekhter and Shekhter-related entities on the other, this is not necessarily the case. The Jones‑related entities generally include â€