THOMAS B. MICH VS. CONCEPT KISMET, LLC (D/B/A PHONOBAR), ET AL

SF Superior Court - Law & Motion / Discovery Dept 302 - CGC25625872 - October 3, 2025 Hearing date: October 3, 2025 Case number: CGC25625872 Case title: THOMAS B. MICH VS. CONCEPT KISMET, LLC (D/B/A PHONOBAR), ET AL Case Number: | | CGC25625872 | Case Title: | | THOMAS B. MICH VS. CONCEPT KISMET, LLC (D/B/A PHONOBAR), ET AL | Court Date: | | 2025-10-03 09:00 AM | Calendar Matter: | | Notice Of Motion And Motion To Compel Arbitration | Rulings: | | On the Law and Motion / Discovery calendar for October 3, 2025, line 8, PLAINTIFF THOMAS MICH And Motion To Compel Arbitration (part 1 of 2)

Plaintiff Thomas B. Mich's Motion to Compel Arbitration is GRANTED.

In Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, the court describes the three-step process to establish the existence of an agreement to arbitrate. "The first step requires the party seeking arbitration to carry the initial burden of presenting prima facie evidence of a written agreement to arbitrate the controversy. If that initial burden is met, the second step requires the party opposing arbitration to carry the burden of producing evidence to challenge the authenticity of the agreement. If the opposing party meets the burden of producing sufficient evidence, the third step requires the party seeking arbitration to prove by a preponderance of the evidence that the parties formed a valid contract to arbitrate their dispute." (Ramirez v. Golden Queen Mining Co., LLC (2024) 102 Cal.App.5th 821, 830 (cleaned up).)

Here, Plaintiff has established he and Defendants Concept Kismet LLC and Christopher Lukezic entered into agreements to arbitrate that cover this dispute. Defendants do not argue that the arbitration agreements do not apply to them or are unenforceable. Thus, the court need not address the other steps of the Gamboa analysis. Plaintiff and Defendants have an enforceable arbitration agreement.

Defendants' waiver defense fails on the record. Waivers are not lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof. "To establish waiver under generally applicable contract law, the party opposing enforcement of a contractual agreement must prove by clear and convincing evidence that the waiving party knew of the contractual right and intentionally relinquished or abandoned it." (Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 584.)

Defendants here have not met their burden of establishing by clear and convincing evidence Plaintiff waived his right to arbitrate disputes with them. Defendants claims that Plaintiff waived his right to arbitrate by his earlier pre-arbitration conduct and conduct during the earlier aborted arbitration are unpersuasive. Plaintiff alleges that he participated in all meditation, prior arbitration proceedings, paid all the necessary fees, and only filed this action when it was clear Defendants did not intend to participate in arbitration. (Mich Decl. par 28.) Defendants did not establish otherwise.

Defendants also argue that Plaintiff's filing of the complaint, TRO and preliminary injunction establish waiver. Not so. The mere filing of a lawsuit does not waive contractual arbitration rights. (St. Agnes Medical Center v. PacifiCare of California, 31 Cal.4th 1187 (2003).) California Civil Procedure Code section 1281.8 specifically permits provisional remedies and specifically indicates that it shall not "operate to waive any right of arbitration."

Furthermore, Plaintiff's conduct does not demonstrate intent "to relinquish and abandon arbitration rights." Although Plaintiff did not fully comply with the requirements of Code of Civil Procedure section 1281.8, "given the strong public policy favoring arbitration, absent an explicit statutory command to find waiver, the failure to include a request for a stay with an application for provisional relief, is a fact to consider in determining waiver, but it is not dispositive." (Simms v. NPCK Enters., Inc., 109 Cal.App.4th 233, 290 (2003).)

Here, Plaintiff moved for arbitration soon after the provisional relief proceedings came to an end. Considering the whole record, Defendants have not demonstrated Plaintiff intended to waive his right to have disputes with Defendants resolved in private arbitration. (Tentative ruling continues in part 2 of 2) | |