I am the defendant. The contract being sued on has a binding arbitration provision, but Plaintiff has sued anyway and has not responded to my request for her to honor the contract. Do I just create the pleadings, or are there forms?
Normally, there is no "law and motion" practice in small claims court. You just have to show up at the scheduled small claims court trial and argue that the case ought to go to binding arbitration.
Nevertheless, there is such a form. Thus, if you wish to make a motion, use this form:
http://courts.ca.gov/documents/sc105.pdf
I agree that Motions are not permitted in small claims cases. However, it appears that the only way to enforce the arbitration provision (according to the Federal Arbitration act and not merely California law) will be to file a Motion. Alternatively, you can raise the issue at your first hearing. Either way, be prepared to show the Court the arbitration provision.
James Michael SlominskiIntellectual Property Law AttorneyLos Angeles, CA ·
In addition to what other counsel have stated, you may simply want to waive that provision and get it over with by letting the small claims Judge rule (and appeal if necessary if you do not like the decision), especially if you have a good defense. Arbitration is going to cost both parties money, and there is no guarantee that you will get it back.
I agree with Mr. Chen. Use For SC-105 (www.courtinfo.ca.gov/forms/fillable.sc105.pdf). Fill it out and turn it into the court BEFORE your hearing date and be sure to serve it on the Plaintiff. Have the form, as well as the proof of service, with you go to court.
State as soon as you can that the written contract has a binding arbitration clause, and that this matter is not permitted in court, even in Small Claims (most arbitration clauses have an exception for Small Claims.) As such, you would like to "Compel Arbitration."
This SHOULD get you out of court. If not, be prepared to argue our case anyway. If you loose, appeal the case, and re-file the SC-105. You will have another opportunity to argue your Motion To Compel Arbitration. Heaven willing, you will prevail.
If you have further questions, be sure to speak with a lawyer that knows about Small Claims.