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socrateaser
socrateaser, Attorney
Category: Landlord-Tenant
Satisfied Customers: 38910
Experience:  Retired (mostly)
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I need to fill out a PLDC010 and I have a question our

Customer Question

Customer: I need to fill out a PLDC010 and I have a question our exlandlord filed a SUM100 which is stupid as our lease clearly states that we have to mediate- so I want to file the form that says it needs to be dismissed with the lease attached with the mediation clause - the only question is I don't know which box to check - 3a- doesn't make sense because he is saying we owe more than 10K
JA: Thanks. Can you give me any more details about your issue?
Customer: This is what I am writing This case should be dismissed and moved to mediation as required by the attached executed agreement between the parties. Per section 48 of the attached Standard Multi- Tenant Office Lease the "Lessor and Lessee agree to mediate any disputes that may arise between the parties, if unable to settle by negotiation". The attached subsequent Sublease Agreement Section 1 states that "Sublandlord hereby subleases and demises to Subtenant and Subtenant hereby hires and takes from Sublandlord, the Subleased Premises subject to the terms of the Master Lease, which are incorporated herein by reference" ; therefore, the sublease is subject to the same mediation clause in the master lease.
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Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  socrateaser replied 1 year ago.

Hello,

Does the rental agreement require arbitration, or only mediation?

Customer: replied 1 year ago.
only mediation -the exact language in the lease is this ""Lessor and Lessee agree to mediate any disputes that may arise between the parties, if unable to settle by negotiation".
Expert:  socrateaser replied 1 year ago.

Okay, thanks.

This is one of those circumstances where I am forced to be the bearer of bad news. I hope you don't decide to "shoot the messenger." In Kirschenman v. Superior Court (1994) 30 Cal. App.4th 832, the California First District Court of Appeals held that "the [Superior Court has] no statutory authority to require the parties to participate in mediation." Id. at 835; see also, Lu v. Superior Court (1997) 55 Cal.App.4th 1264, 1270 (interpreting Kirschenman).

Parties who agree to mediation in a contract may waive their right by filing a civil action, rather than requesting mediation. If you want to try to make a new exception in California law, then the proper procedure would be to file a "demurrer," to the landlord's complaint, point out that the contract requires mediation, and that the landlord has not alleged that mediation has taken place and failed, therefore as the landlord has not stated a claim for which relief may be granted, the case should be dismissed.

Alternatively, you could deny the landlord's claims in your PLDC010, and add, "condition precedent: mediation" as an affirmative defense. Then, assuming that you were to prevail in the case on your affirmative defense, the landlord would be required to mediate. This would be a legal means to proceed with the case, but you would have to litigate the case to a conclusion, which would be extremely inefficient. Thus, the demurrer option is, in my opinion, the preferred choice.

Note: If you don't understand the concept of a demurrer, there is a pretty good article on the subject at this link:

https://burmanparalegal.wordpress.com/2010/06/10/demurrer-to-complaint-in-california/

If you need more comprehensive assistance, I can send you an additional services offer, and we can take this matter offline -- however, I would have to charge you customary legal services fees, so this may not be cost-effective for your circumstances.

There are also a number of professional civil practice guides that can show you how to draft a demurrer. You can find them all at your county public law library (or, you can purchase one, but they're very expensive). If you need assistance in locating your public law library, or you want a link to a professional practice guide, please let me know and I will be happy to provide.

I realize that my answer may not be exactly what you were hoping to read. However, under the circumstances, the best that I can do is to explain what the law is and is not, so that you can avoid expending valuable resources looking for answers that do not exist, and concentrate on the options that are actually available.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Customer: replied 1 year ago.
where are you located?
Expert:  socrateaser replied 1 year ago.

I prefer to remain anonymous in this forum. Most of the time, I can draft pleadings for and advise clients regardless of their locale, as long as I'm not actually representing them in court.

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