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In a homeowner's petition for a writ of mandate seeking to require a trial court to vacate its order compelling arbitration and awarding attorney fees to a condominium association is granted where: 1) an arbitration provision contained in the CC&Rs is not unconscionable, and is applicable; 2) however, a party seeking to compel arbitration under Code of Civil Procedure section 1281.2 must establish it demanded arbitration under the parties' arbitration agreement and that the other party refused to arbitrate under the agreement before it is entitled to an order granting a petition to compel such arbitration; and 3) the association here failed to show it made such a request.
Filed January 28, 2010
Opinion by Judge Cantil-Sakauye
For Appellee: Sproul Trost LLP, Thomas G. Trost, Gregory L. Maxim, Jason M. Sherman