Grubb & Ellis v. Bello

In Grubb & Ellis v. Bello (1993) 19 Cal.App.4th 231, the defendants entered into exclusive listing agreements with a real estate broker to sell two pieces of real property. Identical provisions in both listing agreements provided for arbitration of "'any dispute or claim in law or equity arising out of this contract or any resulting transaction. '" ( Grubb & Ellis v. Bello, supra, 19 Cal.App.4th at p. 235.) Both listing agreements contained the statutorily-mandated "arbitration of disputes" and "notice" provisions immediately followed by separate spaces "for the parties to indicate their assent or nonassent to the arbitration provision." ( 1298, subd. (c).) Bello initialed the provisions in both documents. Grubb did not. When Bello violated the agreements, Grubb demanded arbitration, seeking its commissions. Representing himself, Bello appeared and objected to the arbitration hearing on the ground there were no agreements to arbitrate because Grubb hadn't initialed the arbitration provisions. The arbitrator proceeded with the hearing, and Bello participated. The arbitrator decided in Grubb's favor and issued a $ 67,500 award. Grubb petitioned to confirm the award. Bello opposed, arguing lack of arbitration agreements and the award exceeded the arbitrator's powers because it exceeded the demand. The trial court ordered the award confirmed and entered judgment. The appellate court characterized Bello's argument on appeal as contending section 1298, subdivision (c) requires mutuality of remedy and rejected the argument, reasoning that the statute does not require mutual assent. "Although Grubb's failure to assent in writing might have had some effect on whether it could have been required to arbitrate, the statute does not purport to vitiate Bello's assent in such a situation." ( Grubb & Ellis v. Bello, supra, 19 Cal.App.4th at p. 239.)