This construction defect case arose from the construction of plaintiffs’ home and guest house in Redondo Beach. The construction was overseen by a general contractor. In 2005, Thompson sold “Colonial Cream Patio Flag” stone paving to Simich Construction, a subcontractor that was installing paving around plaintiffs’ pool deck. Plaintiffs allege that the stone paving on the pool deck “decomposed, cracked and deteriorated due to latent defects,” and that debris from the deteriorating paving material damaged other improvements in the pool deck area, including the pool filters and pump system. The defects in the paving material also created a trip and fall hazard. Thompson contends its sales representatives were not told plaintiffs intended to use the stone on a pool deck, nor did Thompson make any representations concerning the stone’s suitability for any particular use.

On April 22, 2009, plaintiffs sued Thompson, Rusher Air Conditioning (not a party to this proceeding) and Doe defendants for negligence and breach of implied warranties. Thompson answered the complaint on May 29, 2009, and Rusher answered the complaint on June 11, 2009. At a case management conference on September 29, 2009, the court found the case was at issue and set the case for trial on April 19, 2010.

On March 9, 2010, (a week before the discovery cutoff date, and just over a month before the date set for trial), Thompson filed an ex parte application for an order shortening time to file a formal petition to compel arbitration. Thompson also sought a stay of the litigation (to preserve the discovery deadline should the motion be denied). The superior court granted the request for an order shortening time.

In its motion to compel arbitration, Thompson asserted that its counsel “was recently made aware” of an arbitration provision in the “Terms and Conditions of Sale” set forth on the reverse side of invoices Thompson submitted to Simich Construction.[
Although Thompson provided the invoices to plaintiffs in response to discovery requests, “the back sides of these invoices had inadvertently not previously been copied.” Counsel first became aware of the arbitration provision on February 12, 2010. Counsel showed the invoice to plaintiffs’ counsel at a court-ordered mediation on February 12, 2010.

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