Filed 9/2/15 Kurtin v. Elieff 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


TODD KURTIN,

     Plaintiff and Respondent,                                         G049556

         v.                                                            (Super. Ct. No. 30-2007-00100307)

BRUCE ELIEFF,                                                          OPINION

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County, Nancy
Wieben Stock, Judge. Affirmed.
                   Miller Barondess, Louis R. Miller, Daniel S. Miller, Mira Hashmall and
Keola R. Whittaker for Defendant and Appellant.
                   Weintraub Tobin, Gary A.Walderon and Sherry S. Bragg for Plaintiff and
Respondent.
                                              *              *              *
              Todd Kurtin filed suit against Bruce Elieff in 2007, alleging causes of
action relating to Elieff’s performance under an earlier settlement agreement. After the
dispute went to trial in a bifurcated proceeding and judgment was entered, the trial court
granted a partial new trial. On appeal, this court expanded the scope of that partial new
trial. The case was remanded to the trial court, whereupon Elieff petitioned for
arbitration, seeking the arbitrator’s “interpretation or clarification” of aspects of the
settlement agreement, prior to the partial retrial. The trial court denied the petition,
concluding Elieff had waived his right to arbitrate.
              We affirm that ruling. Elieff has, in effect, petitioned for arbitration in the
middle of trial. Such a petition is untimely as a matter of law. If Elieff wished to enforce
his right to have the settlement agreement interpreted by an arbitrator, rather than the
court, for purposes of litigating Kurtin’s claims, he was required to do so before those
same issues were submitted to the court for adjudication on the merits.


                                           FACTS


              Kurtin and Elieff were equal partners in a series of real estate ventures in
the 1990’s. However, as Kurtin and Elieff structured their partnership, each real estate
project operated as its own little company, referred to by the parties as the “Joint
Entities.” In 2003, growing disagreements between the two led Kurtin to sue Elieff to
“separate” their interests in the Joint Entities. That litigation spawned a mediation, which
in turn produced a settlement agreement. That agreement, signed in August 2005,
provided that Elieff was to buy out Kurtin for $48.8 million in four installment payments.
              The recitations at the beginning of the settlement agreement purport to treat
Elieff and the Joint Entities as one collective party to the agreement: “This Settlement
Agreement is entered into . . . between Todd Kurtin . . . and Bruce Elieff, the Elieff



                                               2
Separate Entities identified in Exhibit ‘A’ and the Joint Projects identified in Exhibit ‘B’
on the other hand (collectively ‘Elieff’).”
              The settlement agreement provided that of the $48.8 million, both Elieff
and the Joint Entities were jointly and severally responsible for the first installment of
$21 million. However, only the Joint Entities, and not Elieff, were responsible for paying
the last three installments.
              Moreover, the text of the settlement agreement contemplates that the assets
of the Joint Entities would secure its obligations under the agreement. It does so in
paragraph 14 by both requiring Elieff personally to “execute customary documents
necessary to perfect” a security interest to be held by Kurtin and by preventing Elieff
from taking distributions which impair that security. Elieff signed the settlement
agreement both “individually and on behalf of the Elieff Separate Entities and the Joint
Entities.” The agreement had provided that if there was a default in any of the last three
payments, Kurtin would be “entitled to have judgment entered pursuant to C.C.P. Section
664.6 against the Joint Entities” in an amount equal to the unpaid balance.
              Finally, paragraph 15 of the settlement agreement contains an unusual
arbitration clause. It provides, in pertinent part: “In the event that any Party claims that
one or more material terms have been omitted from this Settlement Agreement, or that
the Parties failed to reach an agreement as to one or more material terms, or that any
other defect exists with respect to this Settlement Agreement that would make it
unenforceable, the Parties agree to final and binding arbitration before Tony Piazza or, if
Mr. Piazza is unable, before a mutually agreeable arbitrator. At such arbitration, the
arbitrator shall imply a reasonable term that the arbitrator finds consistent with the
purpose and intent of this Settlement Agreement or otherwise cure any defect in the
Settlement Agreement by amending its terms. The sole act of the arbitrator shall be to
issue an amendment to this Settlement Agreement implying such additional terms, curing
any ambiguity or otherwise curing any defect in this Settlement Agreement that would

                                              3
make this Settlement Agreement unenforceable. This Settlement Agreement, together
with any amendment issued by the arbitrator, shall be enforceable under C.C.P. Section
664.6.”
              Elieff paid the first $21 million installment payment, and the Joint Entities
made the $1.8 million second installment payment. But the Joint Entities paid only about
$3.5 million of the $13.1 million due as the third installment, and then paid no portion of
the final installment of $12.9 million.
              Kurtin sought to enforce the agreement against the Joint Entities under
Code of Civil Procecure section 664.6 (section 664.6). Elieff opposed the motion,
arguing that because the Joint Entities had not been named as parties to Kurtin’s 2003
lawsuit, section 664.6 did not authorize the court to summarily enter judgment against
them in accordance with the terms of the settlement agreement. The trial court agreed
and denied the motion. Moreover, some of the Joint Entities, which were not wholly
owned by Elieff, had objected to being held liable for payment of Elieff’s obligations
under his settlement agreement with Kurtin. The court, however, did not address the
separate question of whether Elieff had the authority to bind the Joint Entities as parties
to the settlement agreement.
              Rather than attempting to add the Joint Entities as parties to the 2003 case,
Kurtin filed a demand for arbitration against Elieff, to ascertain his rights to payment
under the settlement agreement. As pertinent here, the arbitrator determined that Kurtin
was still owed $24,411,433.86 in payments under the agreement, and that Kurtin had the
right to foreclose on only Elieff’s own interests in the Joint Entities to enforce payment of
that obligation.
              Following the arbitration, Kurtin filed this action against Elieff and the
Joint Entities. Although the settlement agreement had not personally obligated Elieff to
pay more than $21 million of the $48.8 buyout price, Kurtin sought additional recovery
from Elieff on the theory Elieff had misrepresented his authority to obligate the Joint

                                              4
Entities to pay the balance. Kurtin also claimed Elieff had breached a provision in the
settlement agreement requiring him to execute the customary documents “necessary to
perfect this security interest” in Elieff’s interests in the Joint Entities. And finally, Kurtin
asserted that Elieff had taken distributions from the Joint Entities that should have gone
to pay off the buyout price.
              The trial was bifurcated into two phases. Phase I consisted of a five-day
trial “concerning the accounting issues” arising out of Kurtin’s claim that Elieff had
breached the settlement agreement by taking distributions from the Joint Entities that
prevented repayment of the remaining settlement obligation. Kurtin had charged that
some $22.4 million of “distributions” had been improperly diverted to Elieff himself or to
Elieff-controlled entities. After hearing evidence, the court made limited findings: (1)
that the settlement agreement “cannot be interpreted as precluding any and all
distributions from being utilized for the good of the [Joint Entities as a] whole;” (2) that
the 2007 arbitration award “does not preclude [] Kurtin from seeking other redress such
as causes of action for fraud or breach of warranty of authority;” and (3) that the evidence
“accounted for every penny of the funds that could be classified in any way as a
distribution from a joint entity in the period following the August 2005 settlement
agreement.” However, the court left for the jury to determine in phase II of the trial
whether any of the distributions made from the Joint Entities had been made in
contravention of the settlement agreement.
              Thus, in phase II, the jury was asked to consider six causes of action against
Elieff: breach of warranty of an agent’s authority under Civil Code section 2342; breach
of warranty of an agent’s authority under Civil Code section 2343; intentional
misrepresentation of Elieff’s authority to sign for the Joint Entities; negligent
misrepresention of Elieiff’s authority to sign for the Joint Entities; breach of the
settlement agreement’s provision requiring Elieff to execute the documents necessary to
perfect Kurtin’s security interests in Elieff’s share of the Joint Entities; and breach of the

                                               5
settlement agreement’s prohibition against distributions by the Joint Entities which
prevented them from paying the balance owed Kurtin on the buyout.
              The jury returned a mixed verdict. On the one hand, it found Elieff liable
for breaching his warranty of authority under both Civil Code sections 2342 and 2343,
and that he had committed an act “wrongful in its nature” when he signed the settlement
agreement on behalf of the Joint Entities. The jury specifically found Kurtin was harmed
by that lack of authority. The jury also determined Elieff had breached the settlement
agreement’s requirement that he provide Kurtin with perfected security interests in
Elieff’s shares of the Joint Entities, and that Kurtin was harmed by that breach. And the
jury likewise determined Elieff had breached the provision precluding him from taking
distributions that prevented the Joint Entities from paying off the balance of the $48.8
million, and that Kurtin was harmed by that breach. On each of those claims, the jury
assessed Kurtin’s damages at exactly $24,411,433.86 – the amount the arbitrator had
identified as the remainder owed by the Joint Entities on the settlement agreement.
              On the other hand, the jury also exonerated Elieff on both the intentional
and negligent misrepresentation causes of action, and found he had reasonable grounds
for believing he had authority to sign the settlement agreement on behalf of the Joint
Entities.
              After judgment was entered against him, Elieff moved for a judgment
notwithstanding the verdict (JNOV) and for a new trial. The court denied the JNOV, but
granted the motion for new trial as to damages only on the grounds of excessive damages
and insufficiency of the evidence. As the court noted in its order, the jury’s award of
over $24 million in damages on the cause of action alleging improper distributions from
the Joint Entities exceeded the entire amount of distributions made by the Joint Entities
for all purposes. And Kurtin himself had sought less than $8 million in damages on that
cause of action.



                                             6
               On appeal, we modified that order to include a new trial on the issue of
Elieff’s liability for breach of warranty of authority under Civil Code section 2343,
noting the inconsistency between the jury’s finding that Elieff had committed an act
“wrongful in its nature” when he signed the settlement agreement on behalf of the Joint
Entities, and its findings that by doing so, he had engaged in neither negligent nor
intentional misrepresentation. But we also expressly affirmed “the trial court’s
determination that Elieff is liable to Kurtin in an as-yet-to-be-determined amount, if any,
on Kurtin’s causes of action for (a) breach of warranty of an agent’s authority under
[Civil Code] section 2342; (b) breach of the provision of the settlement agreement that
Elieff would execute the documents necessary to perfect Kurtin’s security interests in
Elieff’s share of the Joint Entities; and (c) for breach of the provision of the settlement
agreement not to take distributions which prevented the Joint Entities from paying the
balance of the buyout amount.” (Kurtin v. Elieff (2013) 215 Cal.App.4th 455, 487.)
               Following remand to the trial court, Elieff filed a petition to compel
arbitration of three issues: First, “[t]hat Elieff signed the [Settlement] Agreement only
for his interests and not for any third-party owners of the Joint [E]ntities.” Elieff claimed
this determination was “necessary because if [he] did not sign for third-party interests,
then Kurtin has no damages for his two breach of warranty of authority claims and has no
liability based on the claim from breach of warranty of authority under Civil Code section
2343.” Second, Elieff sought “[c]onfirmation that the security documents Kurtin was
entitled to receive would have granted him security enabling him to take Elieff’s right,
title and interest in the joint entities (the same right he received in the . . . June 2007
arbitration award).” Elieff claimed this determination was “necessary to ascertain what
damages, if any, flow from Elieff’s failure to provide customary security documents.”
And third, Elieff sought “[c]onfirmation that ‘distributions’ means profits from the joint
entities as a whole.” He claimed this determination was “necessary to ascertain what
damages, if any, Kurtin has sustained on this breach of contract claim.”

                                                7
               Kurtin opposed the petition to arbitrate, arguing (1) the petition should be
dismissed as an improper attempt to relitigate the same legal issues already submitted to
the court in the guise of a motion for summary judgment and motions in limine, and (2)
Elieff had waived his right to compel arbitration of these issues. The trial court denied
the motion, agreeing with both arguments made by Kurtin: “As correctly and precisely
set out in the Opposition, the issues sought to be decided by arbitration were already
raised by Elieff and decided. Even if they were not decided, they were raised, which is
evidence of a waiver of a right to arbitrate. As set forth in the Opposition, the right to
arbitrate was also waived by the bringing of a motion for summary judgment on the
merits, by litigating merits issues, by litigating for six years, by conducting discovery,
and by participating in trial and an appeal.” The court also found that “it has not been
shown the Parties ever intended that arbitration would be used in, during, after or around
a fully litigated court case . . . .”


                                        DISCUSSION


1. Background Law
               An order denying a motion to compel arbitration is appealable. (Code Civ.
Proc., § 1294, subd. (a).) If there is no dispute concerning the language of the arbitration
clause, we review de novo its applicability to the case. (See Ronay Family Limited
Partnership v. Tweed (2013) 216 Cal.App.4th 830, 837; EFund Capital Partners v. Pless
(2007) 150 Cal.App.4th 1311, 1320.)
               “In light of the policy in favor of arbitration, ‘waivers are not to be lightly
inferred and the party seeking to establish a waiver bears a heavy burden of proof.’
[Citation.] ‘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.] “When, however, the facts are undisputed and only one inference may

                                               8
reasonably be drawn, the issue is one of law and the reviewing court is not bound by the
trial court’s ruling.”’” (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59
Cal.4th 348, 375.)

                In Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 188, our
Supreme Court noted that waiver of the right to arbitrate is established when there has
been “judicial litigation of the merits of arbitrable issues.” The court also recognized
“waiver could occur prior to a judgment on the merits if prejudice could be
demonstrated.” (Id. at p. 188, fn. 3.) And in St. Agnes Medical Center v. PacifiCare of
California (2003) 31 Cal.4th 1187, 1204 (St. Agnes), the Supreme Court explained that
“courts have found prejudice where the petitioning party used the judicial discovery
processes to gain information about the other side’s case that could not have been gained
in arbitration” or “where a party unduly delayed and waited until the eve of trial to seek
arbitration.”
                So waiver of the right to arbitrate is demonstrated when (1) there has been
judicial litigation of the merits of arbitrable issues; (2) resort to the judicial system has
otherwise resulted in prejudice, such as where a party used the judicial process to gain
information about its opponent’s case that would not be available in arbitration; and (3) a
party unduly delayed and waited until the eve of trial to seek arbitration.


2. The “Unique” Arbitration Clause
                Elieff’s primary contention on appeal is that the trial court erred in denying
his petition to arbitrate because it failed to recognize that the arbitration clause
incorporated into the parties settlement agreement is a “unique arbitration clause.” He
claims that “[u]nlike most cases, arbitration is not a substitute for court proceedings.
Instead, the arbitrator had the sole power to resolve contract ambiguities.” (Italics
added.) And because he “invoked his right to seek clarification of the Agreement from


                                               9
the arbitrator before the new trial,” Elieff claims he was entitled to compel arbitration of
the issues he raised as a matter of law. We disagree.
               The arbitration clause at issue here is unusual, if not unique, in that it
expressly gave the arbitrator a power that courts do not have – the power to add or
rewrite provisions in the parties’ settlement agreement if needed to save the contract from
unenforceability. It states that the arbitrator “shall imply a reasonable term that the
arbitrator finds consistent with the purpose and intent of this Settlement Agreement or
otherwise cure any defect in the Settlement Agreement by amending its terms. The sole
act of the arbitrator shall be to issue an amendment to this Settlement Agreement
implying such additional terms, curing any ambiguity or otherwise curing any defect in
this Settlement Agreement that would make this Settlement Agreement unenforceable.”
By contrast, courts have no power to add additional terms or rewrite contracts which are
legally infirm. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24
Cal.4th 83, 124-125 [courts cannot cure contracts by reformation or augmentation]; Civ.
Code, § 1670.5 [allowing courts to sever or restrict unconscionable contractual
provisions, but not rewrite them].) So as to that specific authority, Elieff would be
correct in asserting that no court proceeding could be substituted for the agreed
arbitration.
               But as we concluded in an earlier opinion, this arbitration clause also
provides for the arbitration of disputes about the interpretation of the settlement
agreement (Kurtin v. Elieff, supra, 215 Cal.App.4th at p. 474; see People v. Barragan
(2004) 32 Cal.4th 236, 246 [explaining law of the case doctrine]), and it is that power,
rather than the power to amend the agreement, that Elieff sought to invoke in his petition.
Specifically, he sought to compel arbitration to (1) identify the scope of his authority in
signing the settlement agreement, (2) establish the legal effect of the security documents
he was required to sign, and (3) interpret the meaning of the word “distributions” in the
settlement agreement.

                                               10
               To the extent of those interpretation issues, Elieff fails to demonstrate how
this arbitration clause operates any differently than essentially every other arbitration
provision governing disputes over the interpretation of a contract. As is typical, the
clause simply provides for arbitration of legal issues that would otherwise be adjudicated
in a court. Elieff does assert that the clause in this case is distinctive because it does not
merely “vest the arbitrator with the authority to adjudicate disputes under the [Settlement]
Agreement – instead, it gives the arbitrator the sole authority to interpret the Agreement.”
But he points to no language that actually says the arbitrator’s authority to interpret the
agreement would somehow deprive the court of ordinary subject matter jurisdiction (as
his assertion implies) and we find none. Instead, the clause simply states that in the event
of a dispute concerning the terms of the agreement, the parties “agree to final and binding
arbitration” before the individual who acted as their mediator in negotiating the terms of
the settlement agreement. That is typical language found in a binding arbitration
provision. Nor does the fact the parties identified that specific arbitrator by name change
anything. The clause goes on to make clear that its effectiveness does not depend upon
the availability of that particular arbitrator. Rather, it states that if he is not available, the
parties will arbitrate “before a mutually agreeable arbitrator.”
               And finally, the fact this arbitration clause limits the arbitrator’s authority
to the “sole act” of amending or interpreting the terms of the settlement agreement, while
giving him no power to enforce the agreement, to adjudicate any claimed breach or to
award damages, does not automatically impose the opposite restriction on the court’s
authority – nor could it. The court’s jurisdiction to adjudicate claims – including those
involving the interpretation of agreements – is established by law and exists
independently of this (or any other) agreement. “[T]he parties may not deprive courts of
their jurisdiction over causes by private agreement.” (Smith, Valentino & Smith, Inc. v.
Superior Court (1976) 17 Cal.3d 491, 495.)



                                                11
              In short, we find nothing in this aspect of the arbitration clause that
materially distinguishes it from the typical arbitration provision which specifies that
disputes over the interpretation of an agreement will be submitted to binding arbitration.
Although any party to an agreement containing such a provision has the right to petition
the court for its enforcement when a dispute arises, if the opposing party does not
acquiesce to the arbitral forum (Code Civ. Pro., § 1281.2), it is also true that “a party may
give up its right to arbitrate. ‘As with any other contractual right, the right to arbitration
may be waived.’” (Service Employees Internat. Union, Local 1021 v. County of San
Joaquin (2011) 202 Cal.App.4th 449, 459.) Thus, if neither party makes a timely effort
to enforce the provision in connection with a dispute – i.e., they both waive the right to
arbitrate – then the issues that would otherwise be decided in arbitration can still be
adjudicated in court. (St. Agnes Medical Center v. PacifiCare of California, supra, 31
Cal.4th at p. 1195, fn. 4 [“‘[t]he term “waiver” has also been used as a shorthand
statement for the conclusion that a contractual right to arbitration has been lost’”].)
              So the issue before us on appeal is whether the court erred by finding Elieff
waived his right to have the arbitrator interpret provisions of the parties’ settlement
agreement for purposes of the claims asserted by Kurtin in this litigation. Given the
undisputed evidence that Elieff waited until after this case was tried, a judgment was
entered, an appeal was decided and the case was remanded for a partial retrial before
filing his petition, we have no trouble concluding there was no error.


3. Elieff’s Waiver of the Right to Arbitrate
              In his opposition to the petition to compel arbitration, Kurtin pointed out
that Elieff had previously submitted the very issues he was seeking to arbitrate to the
court for adjudication in this case. Specifically, Kurtin identified Elieff’s motion for
summary judgment in which he asked the court to rule that: (1) Kurtin’s causes of action
for breach of warranty of authority failed as a matter of law because “Elieff only could

                                               12
and did warrant his authority on behalf of and with respect to Elieff’s interest in the
entities in issue”; (2) Kurtin’s sixth cause of action for breach of contract failed as a
matter of law because “there is no causation or damages as Kurtin attained his security
interest through arbitration”; and (3) Kurtin’s seventh cause of action for breach of
contract failed as a matter of law because “Elieff did not take distributions from the Joint
Entities in breach of the Settlement Agreement and Kurtin cannot present any evidence
otherwise.”
              Kurtin’s opposition also pointed out that Elieff filed a motion in limine
before the second phase of the trial, in which he argued that the court’s determination in
phase I that the settlement agreement “cannot be interpreted as precluding any and all
distributions from being utilized for the good of the whole [Joint Entities]” meant “there
can be no breach of contract by Elieff as alleged by Kurtin’s Seventh Cause of Action.”
              The court relied upon those earlier submissions in concluding Elieff had
waived his right to arbitrate those same issues. The court stated “the issues sought to be
decided by arbitration were already raised by Elieff and decided. Even if they were not
decided, they were raised, which is evidence of a waiver of a right to arbitrate. As set
forth in the Opposition, the right to arbitrate was also waived by the bringing of a motion
for summary judgment on the merits, by litigating merits issues, by litigating for six
years, by conducting discovery, and by participating in trial and an appeal.”
              We agree these issues previously submitted to the court by Elieff himself
were essentially identical to the issues he later sought to arbitrate. Specifically, Elieff’s
earlier summary judgment claim that “he only could and did warrant his authority on
behalf of and with respect to [his own] interest in the entities in issue” equates to his
proposed arbitration claim “[t]hat [he] signed the [Settlement] Agreement only for his
interests and not for any third-party owners of the Joint Entities”; his earlier summary
judgment claim that “there is no causation or damages as Kurtin attained his security
interest through arbitration” equates to his proposed arbitration claim “that the security

                                              13
documents Kurtin was entitled to receive would have granted him security enabling him
to take Elieff’s right, title and interest in the joint entities (the same right he received in
the . . . June 2007 arbitration award)”; and his earlier summary judgment claim that he
“did not take distributions from the Joint Entities in breach of the Settlement Agreement
and Kurtin cannot present any evidence otherwise,” combined with his motion in limine
claim that distributions from one Joint Entity could properly be used “for the good of the
whole,” equated to his proposed arbitration claim that “‘distributions’ means profits from
the joint entities as a whole.”
               On appeal, Elieff does not dispute that he had previously submitted the
same issues he seeks to arbitrate to the court for adjudication. Instead, he argues that
because the arbitration clause places “no limitations or qualifications on a party’s right to
arbitration,” the court effectively rewrote the clause by making “arbitration unavailable if
the parties have already litigated issues in court.”
               This argument conflates the interpretation of the arbitration clause with the
analysis of whether Elieff has waived his right to enforce it. The clause itself says
nothing at all about whether it would govern issues of contract interpretation that have
already been litigated in court, and thus the court does not “rewrite” it by subjecting it to
the same waiver analysis applicable to all arbitration provisions.
               Elieff also argues there can be no waiver of the right to arbitrate in the
absence of demonstrated prejudice. He relies on St. Agnes, supra, 31 Cal.4th 1187 for the
proposition that merely engaging in litigation, without prejudice, does not prove waiver.
But in St. Agnes, the court concluded no such prejudice had been established because
“[t]he record . . . does not reflect that the parties have litigated the merits or the substance
of Saint Agnes’s arbitrable claims, or that any discovery of those claims has occurred.
Nor is there any indication that PacifiCare used the Los Angeles and Fresno actions to
gain information about Saint Agnes’s case that otherwise would be unavailable in
arbitration.” (Id. at p. 1204, italics added.) Clearly, all of those things have occurred

                                               14
here. Kurtin’s claims have been fully litigated on the merits, through both trial and an
appeal, and the procedural posture of this case is effectively mid-trial. The only way this
case could be more litigated is if a final judgment had been entered. And if the entry of a
final judgment were the measure of whether the right to arbitrate had been waived, there
would be no need for a waiver analysis at all. The doctrines of res judicata and collateral
estoppel would govern the issue.
              Further, although Elieff acknowledges that prejudice can be established
when the party seeking arbitration has “unduly delayed and waited until the eve of trial to
seek arbitration” (St. Agnes, supra, 31 Cal.4th at p. 1204), he fails to explain how he has
not done that here. As we have already noted, Elieff initially sought court adjudication of
the same issues raised in his arbitration petition by way of a motion for summary
judgment in this case. That motion was filed in November 2008, nearly a year before the
bifurcated trial commenced in this case – and nearly five years before he filed his petition
to arbitrate. The appearance of undue delay is patent, and Elieff’s failure to dispel it
effectively concedes the point.
              Finally, Elieff suggests Kurtin is “judicially estopped” from claiming that
prior litigation of an issue in court effects a waiver of the right to arbitrate. According to
Elieff, Kurtin took the opposite position after the trial court had denied his motion to
enforce the settlement agreement against the Joint Entities under section 664.6 on the
basis they were not “parties” to the earlier litigation. Following the denial of that motion,
Kurtin petitioned for arbitration to somehow fix the “defect” in the settlement agreement
which precluded enforcement of the Joint Entities’ liability in the manner provided for
therein – a petition Elieff interprets as an attempt to relitigate the same issue decided by
the court in denying the motion. The assertion is unpersuasive.
              The doctrine of judicial estoppel “applies when ‘(1) the same party has
taken two positions; (2) the positions were taken in judicial or quasi-judicial
administrative proceedings; (3) the party was successful in asserting the first position

                                              15
(i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are
totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud,
or mistake.’” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987.) There are several
problems with Elieff’s attempt to rely on the doctrine here.
              First, as Kurtin points out, Elieff never claimed Kurtin had waived his right
to arbitrate in connection with the earlier petition. Thus, Kurtin never had occasion to
take any position at that point – let alone an inconsistent one ‒ on whether or to what
extent prior litigation of an issue would effect a waiver of the right to arbitrate. Second,
the issue presented to the court in Kurtin’s motion to enforce the settlement was not the
same as the issue Kurtin sought to arbitrate. In the motion, the issue was whether the
settlement agreement – as it existed ‒ was enforceable against the Joint Entities under
section 664.6. The issue Kurtin sought to arbitrate was whether his inability to enforce
the agreement against the Joint Entities in the manner contemplated by the agreement
was a “defect” that should be cured by amendment. Thus, Kurtin’s earlier petition did
not seek to arbitrate an issue that had previously been litigated, as Elieff’s petition does.
And third, the circumstances surrounding the two arbitration petitions are quite different.
When Kurtin filed his earlier petition, there was no litigation pending in the court; his
motion to enforce the settlement agreement had already been denied. Thus, unlike Elieff
here, Kurtin was not seeking to insert an arbitrator into the middle of a pending case, for
the specific purpose of obtaining rulings on issues already pending before the court.
              For all of these reasons, we reject Elieff’s reliance on judicial estoppel to
defeat the trial court’s finding that he waived his right to arbitrate.




                                               16
                                   DISPOSITION


            The order is affirmed. Kurtin is to recover his costs on appeal.




                                               RYLAARSDAM, ACTING P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




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