Professional Matchmaking, LLC vs. The Standard Agency, Inc

TSA contends that the relationship between the Plaintiffs and Defendants is governed by three agreements: an APA, an Employment Agreement and a Consulting Agreement. TSA asserts that while the APA contains no dispute resolution clause, the Employment Agreement expressly incorporates the entire APA, such that its arbitration clause requires arbitration of all disputes concerning it. TSA also contends that it has only asserted claims against Donalson in arbitration, and that these claims are all rooted in Donaldson’s Employment Agreement and the incorporated APA, such that they thus fall within the scope of the broad arbitration clause and are subject to arbitration.

TSA additionally asserts that Coinbase, Inc. v. Suski (2024) 602 U.S. 143 does not control and is distinguishable, that Donaldson has not carried his burden to show how this arbitration clause cannot be interpreted to require arbitration of TSA’s claims against him, and that Plaintiffs PM and MQI should also have claims involving them heard in arbitration for independent reasons. Lastly, TSA asserts that Plaintiffs offer no support to carry their burden to request a stay of the arbitration and a stay of arbitration would be unwarranted.

The first order requested by Plaintiffs involves whether the thirteen claims asserted by TSA in the pending JAMS Arbitration against Donaldson are subject to arbitration.

Plaintiffs cite to no authority permitting a motion for a Court to determine that claims

made in a pending JAMS Arbitration are not arbitrable.

Plaintiffs cite to Coinbase, Inc. v. Suski (2023) 602 U.S. 143 (“Coinbase”), as support for the proposition that where parties have two agreements containing different provisions regarding arbitration, the court, not an arbitrator, has authority to determine questions of arbitrability. However, Coinbase is distinguishable and inapplicable. In Coinbase, the parties executed two contracts where one contract contained an arbitration provision with a delegation clause providing that an arbitrator must decide all disputes under the contract, and the second contract contained a forum selection clause, providing that all disputes related to that contract must be decided in California courts. (Coinbase, Inc. v.

Suski (2023) 602 U.S. 143, 145.) Under such circumstances, the United States Supreme Court determine that the court decided the arbitrability of a contract-related dispute between the parties. (Ibid.)

In contrast, here, the APA contains no dispute resolution provision, and only the Employment Agreement contains an arbitration provision. Plaintiffs cite to paragraph 9.9 of the APA which states, “Construction. This Agreement shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Agreement shall be governed by, the laws of the State of California, without giving effect to provisions thereof regarding conflict of laws.” (ROA 59, See Ex. 1 to Declaration of James Justice Jr. (“Justice Decl.”), APA, at p. 28, ¶ 9.9.) This is not a forum-selection clause akin to the one in Coinbase.

Code of Civil Procedure sections 1281 and 1281.2 concern petitions or motions to compel arbitration, which is not what Plaintiffs seek. Code of Civil Procedure section 1281 states, “[a] written agreement to submit to arbitration an existing controversy or controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” Under Code of Civil Procedure section 1281.2, the court may order a

petitioner and respondent to arbitrate a controversy if the court determines that an agreement to arbitrate the controversy exists and “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy.” (Code Civ. Proc. § 1281.2.)

Additionally, the Court notes that Plaintiffs provide that in the arbitration, Donaldson filed a demurrer as to the fourth through thirteenth causes of action in TSA’s original arbitration claim, but chose not to further file or litigate any pleadings in that forum after TSA filed a First Amended Arbitration Statement of Claims, pending a ruling in this Court. (Motion, 3:15-16, fn. 2.)

Ultimately, Plaintiffs do not provide authority establishing that the Court may grant the relief requested by way of the instant motion for various orders.

Based on the foregoing, Plaintiffs’ request for an order that certain pending claims in JAMS Arbitration are not arbitrable is DENIED.

As to Plaintiff’s request for stay of the JAMS Arbitration, Plaintiffs argue in conclusory fashion that the JAMS Arbitration should be stayed pending resolution of the primary, larger dispute in this lawsuit involving the APA. Plaintiffs provide no analysis and reasoned argument or grounds for the requested stay. The court may “‘disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which [a party] reached the conclusion [he or she] wants [the court] to adopt.’” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 citing City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.) The request for an order staying the JAMS Arbitration is DENIED.

TSA to give notice.

Petition to Compel Arbitration Defendant/Cross-Complainant, The Standard Agency, Inc. (“TSA”), moves for an order compelling Plaintiffs/Cross-Defendants,

Professional Matchmaking, LLC (“PM”); Model Quality Introductions, Inc., (“MQI”); and Craig Donaldson (“Donaldson”) (collectively, “Plaintiffs” and “Cross-Defendants”) to arbitrate the first two claims in the Complaint, and all of the claims in TSA’s Cross- Complaint.

Plaintiffs’ Late Opposition Initially, TSA objects to Plaintiffs’ late-filed and late-served opposition and requests that the Court decline to consider it due to the prejudice it will suffer from having had no opportunity to file a timely reply brief.

Code of Civil Procedure section 1290.6 provides that a response to a petition to compel arbitration “shall be served and filed within 10 days after service of the petition except that if the petition is served in the manner provided in paragraph (2) of subdivision (b) of Section 1290.4, the response shall be served and filed within 30 days after service of the petition. The time provided in this section for serving and filing a response may be extended by an agreement in writing between the parties to the court proceeding or, for good cause, by order of the court.” (Code Civ. Proc. § 1290.6.)

For an ordinary motion, all papers opposing a motion shall be filed and a copy served on each party at least nine court days before the hearing and “shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed.” (Code Civ. Proc. § 1005(b)-(c).)

While a paper may not be rejected for filing on the ground that it was untimely submitted for filing, the court, in its discretion, may refuse to consider a late filed paper. (California Rules of Court, rule 3.1300(d).) If the court does so, the minutes or order must so indicate. (Ibid.) In determining whether to receive an untimely filed document, “trial courts must consider the specific contexts in

which such motions arise and should employ a flexible rather than rigid or formalistic approach to decisionmaking.” (Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32-33.) “An attorney’s neglect in untimely filing opposing papers must be evaluated in light of the reasonableness of the attorney’s conduct. [Citation.]” (Id. at p. 33.) “Also pertinent are the effects of strict enforcement on the rights of the parties and the furtherance of justice. [Citations.]” (Ibid.)

TSA cites to Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, which provides that a trial court has broad discretion to accept or reject late-filed papers. (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262.) The Court of Appeal concluded that the trial court did not abuse its discretion by refusing to consider a latefiled opposition papers, noting that the parties “made no attempt to seek leave to file their opposition late, and made no attempt to demonstrate good cause for having failed to adhere to the applicable deadline.” (Ibid.)

Here, even assuming the Court treats the instant petition to compel arbitration as a motion, any opposition was due on May 8, 2026. Plaintiffs late-filed and late-served their opposition to the petition to compel arbitration on May 14, 2026, the day a reply was due. (See ROA 63.) Plaintiffs made no attempt to seek leave to file their opposition late, and made no attempt to show good cause for the late filing. It is also prejudicial to TSA as TSA has had no time to prepare a timely or substantive reply. Under these circumstances, the Court exercises its discretion and disregards Plaintiffs’ late opposition.

Merits TSA contends that the relationship between the parties is governed by three documents: an Asset Purchase Agreement (“APA”), an Employment Agreement, and a Consulting Agreement. TSA asserts that it entered into an Employment Agreement with Donaldson which incorporated the entirety of the APA, and that the Employment Agreement contains an arbitration provision which encompasses

Plaintiffs’ first two causes of action in this action and all seven causes of action asserted in TSA’s Cross-Complaint as they concern the Employment Agreement and are rooted in the contractual relationship between the parties and fall within the scope of the arbitration provision such that they are subject to arbitration. TSA also asserts that although PM and MQI are nonsignatories to the arbitration agreements, the agreements may be enforced against them under the doctrines of equitable estoppel and alter ego. Lastly, TSA contends that a stay of this action until conclusion of arbitration is appropriate under 9 U.S.C. § 3.

Applicability of the Federal Arbitration Act TSA provides that this petition to compel arbitration is made pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 2, and Code of Civil Procedure section 1281.

The party asserting the Federal Arbitration Act (“FAA”) bears the burden to show it applies by presenting evidence establishing the contract with the arbitration provision has a substantial relationship to interstate commerce, and the failure to do so renders the FAA inapplicable. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 234.) “[T]he United States Supreme Court has identified ‘three categories of activity that Congress may regulate under the commerce power: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce and persons or things in interstate commerce, and (3) those activities having a substantial relation to interstate commerce.’ [Citations.]” (Ibid.)

TSA does not meet its burden to show that the FAA applies. Therefore, the California Arbitration Act (“CAA”) is applied.

Refusal to Arbitrate and Existence of Agreement to Arbitrate A petition to compel arbitration may be brought under Code of Civil Procedure section 1281.2. (Spear v. Calif. State Auto Assn. (1992) 2 Cal.4th 1035, 1041 (“Spear”).) Under Code of Civil Procedure section 1281.2, the court may order a petitioner and respondent to arbitrate a controversy if the

court determines that an agreement to arbitrate the controversy exists and “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy.” (Code Civ. Proc. § 1281.2.) “Under this provision, a party to an agreement to arbitrate may not bring an action to compel specific performance of the arbitration provision until he or she can allege not only the existence of the agreement, but also that the opposing party refuses to arbitrate the controversy.

Therefore, it appears that a cause of action to compel arbitration does not accrue until one party has refused to arbitrate the controversy. [Citation.]” (Spear, supra, 2 Cal.4th at pp. 1041-1042; see also Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640-641.) “Arbitration can be refused without a formal demand ever having been made.” (Hyundai Amco America, Inc. v. S3H, Inc. (2014) 232 Cal.App.4th 572, 577.) The filing of a lawsuit rather than commencing arbitration proceedings as required by the agreement affirmatively establishes refusal to arbitrate the controversy. (Ibid.)

“ ‘California statutes create a “summary proceeding” for resolving petitions or motions to compel arbitration. [Citation.] “The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” [Citation.]’ [Citation.] (Kader v. Southern California Medical Center, Inc. (2024) 99 Cal.App.5th 214, 220–221.)

“ ‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and,

if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement--either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b))--that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.’ ” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal. App. 4th 754, 761, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394, 413.)

As to refusal to arbitrate, Plaintiffs have filed a Complaint asserting three causes of action. The two causes of action at issue are for breach of the APA and declaratory relief as to express indemnity under the APA. As to refusal to arbitrate TSA’s Cross-Complaint, TSA provides that they sent a letter to Plaintiffs’ counsel to confer about TSA’s proposed Petition, and that Plaintiffs’ counsel responded, “and stated that there was not need to confer further about [TSA’s] proposed Petition. (ROA 39, Declaration of Sean Lowe (“Lowe Decl.”), ¶¶ 2-3.) In addition, Plaintiffs’ motion for orders, indicates Plaintiffs’ position that no claims under the APA are subject to arbitration.

With regards to the existence of an agreement to arbitrate, initially, TSA provides that the APA does not contain a dispute resolution provision. (Petition, 4:15-21.) However, TSA contends that the Employment Agreement and Consulting Agreement both contain arbitration provisions and that the former incorporates the entire APA while the Consulting Agreement incorporated portions of the APA, namely, the Non-Solicitation and Non-Competition provisions.

“ ‘The general rule is that the terms of an extrinsic document may be incorporated by reference in a contract so long as (1) the reference is clear and unequivocal, (2) the reference is called to the attention of the

other party and he consents thereto, and (3) the terms of the incorporated document are known or easily available to the contracting parties.’ [Citations.]” (B.D. v. Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 952 [finding that a dispute resolution section of a license agreement provided sufficient conspicuous notice that it incorporated by reference the Dispute Resolution Policy which contained an arbitration provision].) “It is of no import that the document being incorporated contains an arbitration agreement. [Citations.]” (Id. at p. 953.)

“A written agreement may, by reference expressly made thereto, incorporate other written agreements; and in the event such incorporation is made, the original agreement and those referred to must be considered and construed as one. [Citation.]” (Bell v. Rio Grande Oil Co. (1937) 23 Cal.App.2d 436, 440.)

“The phrase ‘incorporation by reference’ is almost universally understood, both by lawyers and nonlawyers, to mean the inclusion, within a body of a document, of text which, although physically separate from the document, becomes as much a part of the document as if it has been typed in directly.” (Republic Bank v. Marine Nat. Bank (1996) 45 Cal.App.4th 919, 922.)

“A secondary document becomes part of a contract as though recited verbatim when it is incorporated into the contract by reference provided that the terms of the incorporated document are readily available to the other party. [Citation.]” (King v. Larsen Realty, Inc. (1981) 121 Cal.App.3d 349, 357 [finding that parties contracted to abide by the bylaws of the Paso Robles Board of Realtors and that Article VII of those bylaws imposed a duty to arbitrate as set forth in the Arbitration Manual which was incorporated therein by reference]; See Slaught v. Bencomo Roofing Co. (1994), 25 Cal. App. 4th 744, 750 [“When the terms of the Construction Contract were incorporated by reference, the arbitration terms of the Construction Contract were likewise incorporated”].)

Here, the evidence shows that TSA and Donaldson entered into the Employment and Consulting Agreements, that Donaldson signed the Employment Agreement on October 30, 2023, and that Donaldson signed the Consulting Agreement on November 1, 2023. (ROA 41, Declaration of James Justice, Jr. (“Justice Decl.”), ¶¶ 6-7, Exs. 2 and 3.)

Paragraph 8 of the Employment Agreement and Paragraph 8 of the Consulting Agreement, contain identical an arbitration clause which states:

“Governing Law; Arbitration; Venue. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of California without regard to principles of conflict of laws. Any action or litigation concerning this Agreement shall be settled by arbitration in accordance with the rules of JAMS. Arbitration shall be the exclusive dispute resolution process and shall be conducted in the County of Orange, State of California. Any party may commence arbitration by sending a written demand for arbitration to the other Parties.

Such demand shall set forth the nature of the matter to be resolved by arbitration. The substantive law of the State of California shall be applied by the arbitrator to the resolution of the dispute. The Parties shall share equally all costs of arbitration. The prevailing party shall be entitled to reimbursement of attorney fees, costs, and expenses incurred in connection with the arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all Parties. Judgment may be entered on any such decision in accordance with applicable law in any court having jurisdiction thereof.

The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator’s decision.”

(Ex. 2 to Justice Decl., Employment Agreement, at p. 5, ¶ 8; Ex. 3 to Justice Decl., Consulting Agreement, at p. 4, ¶ 8.)

The Employment Agreement states, in part:

“WHEREAS, on or about October 30 2023, TSA and Donaldson entered into an Asset

Purchase Agreement (“APA”) that describes TSA’s purchase of the Assets and certain Liabilities of Professional Matchmaking, LLC (“PM”) and Model Quality Introductions, Inc. (“MQI”) (collectively described as the “Business”) and scheduling a target November 1, 2023, “Closing Date” for this “Transaction.” A true and correct copy of which is attached as Exhibit “A” hereto and incorporated herein by this reference.”

(Ex. 2 to Justice Decl., Employment Agreement, at p. 1, Recitals.)

In addition, Paragraph 6 of the Employment Agreement and Paragraph 6 of the Consulting Agreement contain the same following provision:

“Non-Competition / Non-Solicitation. The entirety of APA Article 7, including, but not limited to, the ¶7.2 Non-Compete provision, ¶7.3 Non-Solicitation provision, ¶7.4 Interference with Relationships provision, ¶7.5 Confidential Information provision, is hereby incorporated by reference as if set forth at length.”

(Ex. 2 to Justice Decl., Employment Agreement, at p. 4, ¶ 6; Ex. 3 to Justice Decl., Consulting Agreement, at p. 4, ¶ 6.)

Based the foregoing, the Employment Agreement expressly incorporates the entire APA by reference. In addition, the Employment and Consulting Agreements expressly incorporate the entirety of Article 7 of the APA into those agreements. Plaintiffs have not filed an opposition and do not dispute that the APA was readily available to them. Indeed, pursuant to the terms of the Employment Agreement, a copy of the APA was attached to the Employment Agreement. In addition, it is not disputed that Donaldson executed the APA as a Member and Authorized Officer of PM and as a Shareholder and Authorized Officer of MQI. (See Justice Decl., ¶ 5, Ex. 1, APA, at pp. 30-31.) Accordingly, as the entire APA was expressed incorporated into the Employment Agreement, the APA is part of the “Agreement” referenced in the arbitration provision, and the arbitration provision in the

Employment Agreement applies to the APA. The arbitration provision broadly encompasses “[a]ny action or litigation concerning this Agreement.”

With regards to whether Plaintiffs’ first cause of action for breach of the APA by filing JAMS arbitration claim and second cause of action for declaratory relief re: express indemnity under APA and to establish duty to defend fall within the scope of the arbitration provision in the Employment Agreement, the first cause of action involves whether TSA breached the APA, including whether the arbitration provision in the Employment Agreement applies to the APA. (Complaint, ¶¶ 25-35.) The second cause of action involves a determination of the rights and duties of the parties in connection with the APA, based on an express indemnity provision in the APA. (Complaint, ¶¶ 39-47.)

As the first cause of action involves the Employment Agreement and the APA and the second cause of action involves the APA and the APA was expressly incorporated into the Employment Agreement, these claims concern the “Agreement” and fall within the scope of the arbitration provision.

TSA’s Cross-Complaint asserts seven causes of action against PM and MQI: (1) Intentional Misrepresentation; (2) Negligent Misrepresentation; (3) Fraudulent Concealment; (4) Conversion; (5) Improper Disposition Of Property; (6) Tortious Interference With Contracts; and (7) Tortious Interference With Prospective Economic Advantage. (See Ex. 1 to Lowe Decl., Cross- Complaint.) The Cross-Complaint alleges that PM and MQI are alter egos of Donaldson and that Donaldson is personally liable for TSA’s damages as the alter ego of PM and MQI. (Ex. 1 to Lowe Decl., Cross-Complaint, ¶¶ 23-29, 85, 101, 113, 121, 129, 139, 150.)

The first three fraud-based claims involve alleged misrepresentations made by Plaintiffs as to Donaldson’s education and qualifications as well as misrepresentations made to induce TSA to purchase the assets of PM and MQI. (Ex. 1 to Lowe Decl., Cross-Complaint, ¶¶ 71- 83, 89-100, 105-111.) As such, these claims concern the “Agreement” as they concern the

Employment Agreement and the APA and fall within the scope of the arbitration provision.

The fourth and fifth causes of action in the Cross-Complaint concern theft by the Plaintiffs during Donaldson’s employment with TSA. (Ex. 1 to Lowe Decl., Cross-Complaint, ¶¶ 117-119, 124-125.) Therefore, these claims concern the Employment Agreement and fall within the scope of the arbitration provision.

The sixth and seventh claims in the Cross- Complaint concern the Plaintiffs’ interference with TSA’s customers, and prospective customers. (Ex. 1 to Lowe Decl., Cross- Complaint, ¶¶ 132-138, 142-149.) These claims likewise concern the Employment Agreement and APA and therefore fall within the scope of the arbitration provision.

Based on the foregoing, TSA establishes the existence of a valid agreement to arbitrate by a preponderance of the evidence, and the arbitration provision encompasses the first two causes of action in Plaintiffs’ Complaint and all seven causes of action in TSA’s Cross- Complaint.

Enforceability of Arbitration Provisions Against Non-Signatories TSA provides that PM and MQI are nonsignatories to the arbitration agreements, but that it may enforce the arbitration provision against PM and MQI based on equitable estoppel and Donaldson’s alter egos.

As a general rule, a party cannot be compelled to arbitrate a dispute that he or she has not agreed to resolve by arbitration. (Buckner v. Tamarin (2002) 98 Cal. App. 4th 140, 142; Benasra v. Marciano (2001) 92 Cal. App. 4th 987, 990 [“The strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration”].)

“ . . . [T]he strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement or

who have not authorized anyone to act for them in executing such an agreement.’ [Citations.] Whether an arbitration agreement is operative against a nonsignatory is determined by the trial court and reviewed de novo. [Citation.]” (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1512.) “[T]here are six theories by which a nonsignatory may be bound to arbitrate: ‘(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.’ [Citations.]” (Id. at p. 1513.)

“When a plaintiff brings a claim which relies on contract terms against a defendant, the plaintiff may be equitably estopped from repudiating the arbitration clause contained in that agreement. [Citation.]” (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1239 [applied to nonsignatory plaintiffs].) “ ‘ “[T]he equitable estoppel doctrine applies when a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory defendants for claims that are ‘ “based on the same facts and are inherently inseparable” ’ from arbitrable claims against signatory defendants.” ’ [Citation.]” (Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1287.) “Claims that rely upon, make reference to, or are intertwined with claims under the subject contract are arbitrable. [Citation.]” (Ibid.)

Here, Plaintiffs’ first and second causes of action concern the filing of a JAMS Arbitration claim against Donaldson, and is brought by Donaldson, as well as non-signatories, PM and MQI. Both causes of action rely upon the APA that was incorporated into the Employment Agreement, that contains the arbitration provision. Thus, Plaintiffs are estopped to avoid arbitration on these claims.

“Alter ego theory posits that the individual defendants are inseparable from the corporation and in legal effect are the corporation. [Citation.] The corporate form is disregarded and the entity is considered an association of individuals. [Citations.]” (Rowe, supra, 153 Cal.App.4th at p. 1284.)

“In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone. [Citations.]” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) “ ‘Among the factors to be considered in applying the doctrine are commingling of funds and other assets of the two entities, the holding out by one entity that is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, and use of one as a mere shell or conduit for the affairs of the other.’ [Citations.]” (Id. at pp. 538-539.) “Other factors . . . include inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers. [Citations.]” (Id. at p. 539.)

As to TSA’s claims in its Cross-Complaint against PM and MQI, TSA alleges that PM and MQI are alter egos of Donaldson, a signatory to multiple arbitration clauses related to this dispute. TSA alleges that a unity of interest and ownership exists between Donaldson, PM, and MQI, that PM and MQI were used by Donaldson to funnel profits to himself or to use in transactions; that PM and MQI are inadequately capitalized such that their capitalization is illusory, that PM and MQI’s assets were used by Donaldson for his personal use and caused assets to be transferred, and/or withdrew funds from PM and MQI’s bank accounts for improper personal use and/or nonbusiness purposes, and that PM and PQI used the same office address as Donaldson and that all three employed the same employees. (Ex. 1 to Lowe Decl., Cross-Complaint, ¶¶ 25-29.)

However, TSA’s assertion of the alter ego doctrine relies solely on its allegations in the Cross-Complaint. There is no evidence submitted to support the application of the alter ego doctrine and TSA’s alter ego allegations.

Nevertheless, it appears that Donaldson had the authority to act on behalf of PM and MQI as he executed the APA as a Member and Authorized Officer of PM and as a Shareholder and Authorized Officer of MQI. (See Justice Decl., ¶ 5, Ex. 1, APA, at pp. 30-31.) “A nonsignatory can be compelled to arbitrate when a preexisting relationship existed between the nonsignatory and one of the parties to the arbitration agreement, making it equitable to compel the nonsignatory to arbitrate as well. [Citation.]” (Id. at p. 1240.) “Every California case finding nonsignatories to be bound to arbitrate is based on facts that demonstrate, in one way or another, the signatory’s implicit authority to act on behalf of the nonsignatory. [Citations.]” (Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 304.)

Based on the foregoing, the arbitration provision may be enforced against nonsignatories PM and MQI.

The Court GRANTS TSA’s motion to compel arbitration of the first two causes of action of Plaintiffs’ Complaint as well as the entirety of TSA’s Cross-Complaint.

This action is STAYED pending completion of arbitration. (Code Civ. Proc. § 1281.4.)

The Case Management Conference is vacated.

The Court sets an ADR Review hearing for December 17, 2026 at 1:30 p.m. in Department W15.

TSA to give notice.

Motion for Declaratory Relief Plaintiffs, Professional Matchmaking, LLC (“PM”); Model Quality Introductions, Inc., (“MQI”); and Craig Donaldson (“Donaldson”) (collectively, “Plaintiffs”) move for a declaratory relief order (1) finding that Paragraph 8.2.2 of the October 13, 2023, Asset Purchase Agreement (“APA”), contains an enforceable indemnification, defense and reimbursement provision; (2) finding that The Standard Agency, Inc. (“TSA”) breached the APA by filing an Arbitration Claim to attempt

to litigate disputes arising under the APA, when the APA clearly does not contain an Arbitration clause; and (3) requiring TSA to make payments in the grand total of $28,977.50 consisting of $18,950 to Donaldson to reimburse him for payments he made to the Law Office of Brian Ballo, and $10,342.50 to the Law Office of Brian Ballo.

In light of the Court’s ruling on the TSA’s petition to compel arbitration, Plaintiffs’ motion for declaratory relief is DENIED as MOOT.

Additionally, Plaintiffs appear to seek adjudication of the first two causes of action asserted in their Complaint, and the instant “motion for declaratory relief” is not the proper procedural vehicle to obtain adjudication of a cause of action asserted in their Complaint.

Plaintiffs cite to Code of Civil Procedure section 1060 which states: “Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or crosscomplaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.

He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.” (Code Civ.

Proc. § 1060.) Section 1060 merely provides that that a party may bring an original action or cross-complaint for a

declaration of right and duties under a contract, and the court may make a binding declaration, but does not support that a party may bring a “motion for declaratory relief.”

Based on the foregoing, Plaintiffs’ motion for declaratory relief is DENIED.

TSA to give notice.

102 Samie vs. Marriott International, Inc., 25-01494164 Defendants Apple Eight Hospitality Ownership, Inc. and Apple Eight Hospitality Management, Inc. (“Apple Defendants”) demur to the first, fourth, fifth, sixth, seventh, and eighth causes of action of the complaint of plaintiff Hamid Reza Samie (“Plaintiff”) and move to strike Plaintiff’s claims for punitive damages and attorney fees.

First Cause of Action for Battery Apple Defendants argue that Plaintiff’s allegations that they failed to eradicate the bedbug infestation and ratified employee conduct by not terminating employees responsible for Plaintiff’s injuries and not training such employees do not support the conclusion that Apple Defendants touched Plaintiff with intent to harm or offend. They contend that these allegations support, at most, a claim for negligence.

“A battery is any intentional, unlawful and harmful contact by one person with the person of another. [Citation.] A harmful contact, intentionally done is the essence of a battery. [Citation.] A contact is ‘unlawful’ if it is unconsented to.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611.)

Here, Plaintiff alleges that Defendants collectively invited Plaintiff to stay as a hotel guest despite having knowledge that there was a bed bug infestation in the hotel. Plaintiff further alleges that Defendants’ intentional and reckless actions or inactions caused Plaintiff to be touched by the infestation of bed bugs. Plaintiff does not allege that any employees or agents of Apple Defendants came into contact with Plaintiff themselves. Thus, Plaintiff has not alleged any contact by one person with the person of another and the allegations do not support a