§ 1281.5.Arbitration By Claimant to Enforce Lien

Title 9. Arbitration · Chapter 2. Enforcement of Arbitration Agreements · Last amended 2012 · Last verified July 29, 2026

In one sentenceSection 1281.5 lets a mechanics' lien claimant file suit to enforce the lien without waiving arbitration rights, so long as the claimant reserves those rights in the complaint and moves within 30 days to stay the action, while a defendant who fails to move to compel arbitration by the time of answering waives that right instead.

Full Text of § 1281.5

Text sizeJump to: (a) (b) (c)

(a) Any person who proceeds to record and enforce a claim of lien by commencement of an action pursuant to Chapter 4 (commencing with Section 8400) of Title 2 of Part 6 of Division 4 of the Civil Code, does not thereby waive any right of arbitration the person may have pursuant to a written agreement to arbitrate, if, in filing an action to enforce the claim of lien, the claimant does either of the following:

(1) Includes an allegation in the complaint that the claimant does not intend to waive any right of arbitration, and intends to move the court, within 30 days after service of the summons and complaint, for an order to stay further proceedings in the action.

(2) At the same time that the complaint is filed, the claimant files an application that the action be stayed pending the arbitration of any issue, question, or dispute that is claimed to be arbitrable under the agreement and that is relevant to the action to enforce the claim of lien.

(b) Within 30 days after service of the summons and complaint, the claimant shall file and serve a motion and notice of motion pursuant to Section 1281.4 to stay the action pending the arbitration of any issue, question, or dispute that is claimed to be arbitrable under the agreement and that is relevant to the action to enforce the claim of lien. The failure of a claimant to comply with this subdivision is a waiver of the claimant's right to compel arbitration.

(c) The failure of a defendant to file a petition pursuant to Section 1281.2 at or before the time the defendant answers the complaint filed pursuant to subdivision (a) is a waiver of the defendant's right to compel arbitration.

End

Plain-English Summary

Enforcing a mechanics' lien normally means filing a lawsuit, but that filing could look like giving up any right to arbitrate the underlying dispute. This section lets a claimant avoid that trap. A claimant who sues to enforce a lien doesn't waive arbitration rights, so long as the complaint either alleges the claimant's intent to preserve those rights and move for a stay within 30 days, or the claimant files an application for a stay at the same time as the complaint.

That protection comes with a deadline of its own. Within 30 days after service of the summons and complaint, the claimant has to file and serve the stay motion under § 1281.4. Missing that window waives the claimant's right to compel arbitration, even if the complaint said the right was being preserved.

Defendants face a parallel deadline. If a defendant wants to compel arbitration under § 1281.2, that petition has to come at or before the time the defendant answers the lien-enforcement complaint -- otherwise the defendant waives the right to arbitrate too.

Frequently Asked Questions

Does filing a mechanics' lien lawsuit waive the right to arbitrate?

Not automatically. Section 1281.5 lets the claimant preserve arbitration rights by alleging that intent in the complaint or by filing a stay application at the same time.

What must the claimant do to preserve arbitration?

File and serve a motion to stay under § 1281.4 within 30 days after service of the summons and complaint; failing to do so waives the right to compel arbitration.

What happens if the defendant doesn't move to compel arbitration in time?

The defendant waives the right to compel arbitration if a § 1281.2 petition isn't filed at or before the time the defendant answers the complaint.

Amendment History

Amended by Stats 2010 ch 697 (SB 189),s 25, eff. 1/1/2011, op. 7/1/2012. Amended by Stats 2003 ch 22 (SB 113), eff. 7/1/2003. Amended by Stats 2002 ch 784 (SB 1316),s 82, eff. 1/1/2003.

Source & verification. Section text is reproduced verbatim from the California Legislative Information. Enacted by the California Legislature. Last verified July 29, 2026. · Official source

Also known as: mechanics lien arbitration californiawaiver of arbitration lien claim