CAZARES VS MARTINEZ

In Opposition, Plaintiff contends that: (1) Plaintiff cannot be compelled to arbitrate the Zoom Casa Forward Program agenda because (a) the second contract is not subject to arbitration and (b) the parties have not mediated prior to arbitration; (2) non-moving Defendants Juan M. Martinez and JM Desert Real Estate are also parties to the action arising out of the same transaction and there is a possibility of conflicting rulings on common issue of law or fact and CCP § 1281.2(c) is not preempted by the Federal Arbitration Act (“FAA”); (3) there is no arbitration provision in the Zoom Casa addendum not is any arbitration agreement incorporated by reference into that agreement; (4) Fred Bin is not a party to the arbitration agreement and therefore may not compel Plaintiff to

arbitrate under the Residential Purchase Agreement as (a) a non-signatory to an agreement is not a party to the agreement; (b) an agent who signs the agreement not in his personal capacity if a third party; (5) the agreement to arbitrate is unenforceable in that respondent’s assent was not voluntarily obtained as (a) arbitration under a fraudulent agreement is not proper and (2) documents were not read/given to Plaintiff in Spanish.

In Reply, Defendants contend that: (1) the fact that the Addendum doesn’t contain an arbitration provision is irrelevant; (2) the PSA did not require mediation as a condition precedent to arbitration; (3) Plaintiff does not explain what inconsistent rulings may occur since the Broker Defendants are not party to the arbitration provision and should not be ordered to arbitration; (4) Fred Bin has agreed to arbitration; and (5) the PSA provides that the agreement is governed by the FAA.

Motion to Compel Arbitration

Upon the petition/motion of a party to an agreement to arbitrate, the court must grant a petition to compel arbitration unless it finds: no written agreement to arbitrate exists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (CRC 3.1330; see also Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218-19.)

“In ruling on a petition to compel arbitration, the trial court may consider evidence on factual issues relating to the threshold issue of arbitrability . . . . Parties may submit declarations when factual issues are tendered with a motion to compel arbitration.” (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653.) In the summary proceedings on a motion to compel arbitration, “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.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)

Arbitration Agreement

Here, attached as Exhibit “A” to Plaintiff’s Complaint is the September 8, 2025 PSA entered into between Plaintiff and Defendant Zoom that is the basis for Plaintiff’s Complaint. The Broker Defendants may choose to have disputes involving them and arising out of the PSA heard and determined in arbitration as well upon their written agreement. (See PSA paragraph 31 D).

The PSA contains at paragraph 31 an agreement to arbitrate between Plaintiff and Zoom that is initialed by both of them and states, “Parties agree that any dispute or claim in Law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration.” (See, Complaint, Ex. “A” & Ex. “A” hereto). Thus, there is a binding written agreement to arbitrate between Plaintiff and Zoom and encompasses the entirety of the allegations made in the Complaint. In addition, Bin agrees to submit the claims asserted against him via the Complaint to arbitration. (See, attached Bin Decl.).

Claims at Issue

The claims at issue here are encompassed by the subject arbitration agreement. Paragraph 31 of the PSA clearly states that “any dispute or claim in Law or equity arising between them out of this Agreement or any resulting transaction” shall be submitted to binding arbitration. All five of the causes of action pleaded in the Complaint are predicated on the allegation that Zoom, and its purported alter ego Bin, misrepresented the term of the PSA and accompanying Zoom Forward contract to Plaintiff through the parties joint Broker Defendants, which Plaintiff allegedly relied upon in entering into the PSA. (Complaint, ¶¶ 21-24, 27, 29 & 39).

Since the five causes of action in the Complaint “arise” out of the PSA they are all arbitrable. Further, case law makes it clear that even Plaintiff’s cause of action for Elder Abuse is arbitrable. Specifically, the Courts in Stiner v. Brookdale Senior Living, Inc. (9th Cir. 2020) 810 Fed.Appx. 531, 534-535 and Ackerberg v. Citicorp USA, Inc. (N.D. Cal. 2012) 898 F.Supp.2d 1172, 1174-1177 all held that under the FAA claims for elder abuse are subject to arbitration.

Even under California law, a claim for Elder Abuse is subject to a binding arbitration provision. In Hogan v. Country Villa Health (2007) 148 Cal.App.4th 259, 265, the Court held that elder abuse claims are subject to arbitration. Likewise, the Court in Bickel v. Sunrise Assisted Living (2012) 206 Cal.App.4th 1, 12 held that the arbitration provision of a residency agreement for an assisted living facility was intended to cover elder abuse claims.

Plaintiff contends that the Zoom Casa Addendum (“Addendum”) is a second contract between the parties. However, the addendum is not a second contract, but a document attached to a contract to clarify or modify a part of a contract.

In the Complaint, Plaintiff explains that the Purchase Agreement (“PSA”) and the Addendum are one in the same and he identifies them both as being the “agreement.” Specifically, ¶12 of the Complaint alleges:

12. On or about September 11, 2023, Francisco Cazares (“plaintiff”) plaintiff entered into a contract to sell real property located at 81145 Paludosa Drive, Indio, 12 California 92201, Assessor’s Parcel Number is 610-301-002 (hereinafter “property”) to Zoom Casa, LLC (“Zoom”). A copy of the California Residential Purchase Agreement and Joint Escrow Instructions and Zoom Casa Forward Program Addendum (collectively, “agreement”) are attached hereto and incorporated by reference as Exhibit “A” and Exhibit “B,” respectively.”

Further, in ¶¶ 19 and 29, the Complaint alleges: 19. As a result of JDRE’s breach of fiduciary duty to investigate material facts, plaintiff has been damaged because plaintiff signed the agreement with the understanding that Zoom was offering to purchase the property for $515,000.00.” “29. Plaintiff was deprived of his property by means of a listing agreement and purchase and sale contract.” These allegations all relate to the purchase of the property under the terms of a single contract which Plaintiff defined as including both the PSA and the Addendum. The arbitration provision is found in the PSA and that arbitration provision covers any dispute that may arise under the PSA and the Addendum.

The language of the Addendum likewise proves that it is subject to the Arbitration provision contained in the PSA. The Addendum states: “This Zoom Casa Forward Program Addendum (“Addendum”) modifies the CAR Form R.P.A. (the “Contract”) dated _____between Seller and Zoom Casa, LLC (“Zoom Casa”)

with respect to the real property commonly known as 81145 Paludosa Dr, Indio, CA 92201 (“Property”). Capitalized terms used but not specifically defined in this Addendum have the meaning given to them in the Contract. In the event of any conflict with the terms in the Contract, the terms of this Addendum shall control.” (Ex. “A” to Complaint, pg. 1).

(See Ex. A to Complaint, page 11.)

¶9 of the Addendum states:, “All other terms contained in the Contract remain the same.” (Ex. “B” to Complaint)

While the first page of the Addendum does not have the date of the PSA filled in, paragraph 12 of the Complaint admits that this Addendum applies to the PSA as Plaintiff alleges that they are both the “agreement.” More importantly, not a single provision in the Addendum modifies or deletes the Arbitration provision of the PSA and therefore the Arbitration provision “remains the same” under paragraph 9 of the Complaint making it still in full force and effect.

Plaintiff’s argument that since the parties did not mediate, they cannot be compelled to arbitration has no merit. Plaintiff contends that since the parties did not mediate this case, then arbitration cannot be compelled because the PSA supposedly required mediation as a condition precedent to any arbitration. (Opp., pgs. 12-18). This appears to be a misunderstanding of the terms of the Mediation and Arbitration provisions in the PSA.

¶30 of the PSA sets forth the penalty if a party does not institute mediation “before resorting to mediation or court action,” and it states:

“If, for any dispute or claim to which this paragraph applies, any Party (i) commences an action without first attempting to resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after [] request has been made, then that Party shall not be entitled to recover attorney fees, even if they would otherwise be available to that Party in any such action.”

(See ¶30 of PSA attached as Ex. A to Complaint.)

Plaintiff’s counsel apparently ignored this provision and filed this action without ever seeking to mediate. Therefore, it appears Plaintiff and only Plaintiff has lost the right to recovery attorney’s fees in the event Plaintiff should prevail at arbitration. Nowhere does this mediation provision state that a party is barred from moving to compel Arbitration if they had not previously engaged in mediation. Instead, it makes clear that if a party does not attempt to resolve the matter through mediation before commencing any action, then that party is not entitled to recover its attorney’s fees.

Plaintiff also contends in the Opposition that since the Defendant Brokers are not a party to the Arbitration provision, the Court should use its discretion to deny the Motion to Compel Arbitration because inconsistent rulings could occur if the part of the case proceeds against the Defendant Brokers in the Superior Court while the case against Zoom and Bin proceed in Arbitration. Here, Plaintiff does not articulate what those inconsistent rulings may be.

In addition, the Court can stay the portion of the case against the Defendant Brokers while the Arbitration proceeds. This was addressed in moving papers but not responded to in the Opposition. Per the Motion: 9 USC § 3 entitled, “Stay of proceedings where issue therein referable to arbitration” states:

“If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.”

CCP § 1284.4 provides, in relevant part:

“If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.

If an application has been made to a court of competent jurisdiction, whether in this State or not, for an order to arbitrate a controversy which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.”

“The Act [the FAA] has been interpreted to require that if a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation.” (KPMG LLP v. Cocchi (2011) 565 U.S. 18, 19.) The same is true under California law. “When a party brings a motion to compel arbitration under circumstances in which there may be arbitrable and nonarbitrable issues, the trial court should first determine the arbitrable and nonarbitrable claims alleged in the complaint, order all of the arbitrable claims to arbitration, and stay all such claims pending arbitration.” (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2015) 234 Cal.App.4th 459, 468.)

E. Defendant Fred Bin has agreed to submit to arbitration to the claims asserted against him. In the Opposition, Plaintiff contends that Arbitration cannot be ordered because defendant Bin is also not a party to the Arbitration provision in the PSA because he did not sign the PSA in his individual capacity. (Opp., pg. 4, ln. 1-17). This argument ignores the fact that ¶¶ 8 & 9 of the Complaint allege that Bin is the alter ego of Zoom. (Complaint, ¶¶ 8 & 9). Bin signed the PSA and Addendum as the agent for Zoom. According to Defendants, this is the only reason Bin is named in this action.

“Nonsignatory defendants may enforce arbitration agreements ‘where there is sufficient identity of parties. Enforcement is permitted where the nonsignatory is the agent for a party to the arbitration agreement, or the nonsignatory is a third party beneficiary of the agreement. In addition, a nonsignatory may enforce an arbitration agreement under the doctrine of equitable estoppel. The doctrine applies where, for example, a signatory plaintiff sues a nonsignatory defendant for claims that are based on an underlying contract. In such instance, the plaintiff may be equitably estopped to deny the nonsignatory defendant’s right to enforce an arbitration clause that is contained within the contract that the plaintiff has placed at issue.” (Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 Cal.App.4th 1, 9-10; citing, Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 220.

“[A]a signatory to an agreement with an arbitration clause cannot ‘have it both ways’; the signatory ‘cannot, on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but, on the other hand, deny arbitration’s applicability because the defendant is a non-signatory.’” (Pacific Fertility Cases (2022) 85 Cal.App.5th 887.)

Accordingly, any claims alleged in the Complaint against Zoom are also being made against Bin as its alleged alter ego and therefore Bin has a right to have those claims also submitted to Arbitration. It is clear that Plaintiff’s claim that Bin is not a party to the PSA has no bearing on the claims alleged against him being also sent to arbitration as they are the same claims asserted against Zoom and separately against Bin based on the claim that Bin is the alter ego of Zoom.

FAA

Plaintiff fails to address authority cited in the Motion that the FAA applies. A written agreement to submit to arbitration of a potential future controversy is valid, enforceable and irrevocable. Cal. Code of Civ. Pro. §1281. Here, ¶31 of the PSA is a written arbitration provision that also states that any motion to compel arbitration pursuant to this Agreement to arbitrate shall be governed by the procedural rules of the Federal Arbitration Act (“FAA”) and not the California Arbitration Act, notwithstanding any language seemingly to the contrary in this Agreement. (See, Ex. “3” to Complaint, ¶ 31). The Opposition does not cite a single case addressing the FAA nor does the Opposition discuss a single case cited in the Motion discussing the treatment of a motion to compel arbitration under the FAA.

The Federal Arbitration Act (the “FAA”) establishes federal policy favoring arbitration of commercial disputes, and preempts state statutes or rules discriminating against arbitration by discouraging or prohibiting the formation of an arbitration agreement. (Chamber of Commerce of the United States of America v. Bonta (9th Cir. 2023) 62 F4th 473, 486-487.) When the parties “have agreed to arbitrate some matters pursuant to an arbitration clause, ... any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration.” (Granite Rock Co. v.

International Broth. of Teamsters (2010) 561 US 287, 298.) “The court’s role under the Act is therefore limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. (Chiron Corp. v. Ortho Diagnostic Systems, Inc. (9th Cir. 2000) 207 F3d 1126, 1130.) (citations omitted.) This is the beginning and the end of the Court’s inquiry upon Motion to Compel Arbitration under the Federal Arbitration Act (“FAA”).

Here, the Motion establishes that the PSA attached to Plaintiffs’ Complaint and forms the basis for their lawsuit contains a valid arbitration agreement. (Mot., pgs. 6-9 & Ex. “A” to Plaintiff’s Complaint). Plaintiff does not deny the existence of the valid arbitration provision or that he initialed it. Instead, Plaintiff contends that “Arbitration should not be compelled if the agreement containing the arbitration provision was induced by fraud, duress, or undue influence such that there was no voluntary mutual assent.” (Opp., pg. 4, ln. 22-24).

However, “Under the FAA, courts may resolve challenges directed specifically to the validity of the arbitration provision itself, but if there are no arbitration-specific challenges, the court must send to the arbitrator any other challenges, including challenges to the validity of the contract as a whole. Specifically, in the presence of an otherwise-valid arbitration provision, a challenge that the entire agreement was fraudulently induced must be sent to the arbitrator.” (Hunt v. Meta Platforms, Inc. (N.D. Cal. 2024) 729 F.Supp.3d 964, 969.)

California law is no different. “A case solely based on allegations of fraud in the inducement (‘disappointed expectations’) may be ordered to arbitration, and the arbitrator may award relief

such as ‘revocation of the agreement.” (Duffens v. Valenti (2008) 161 Cal.App.4th 434, 453.) “ . . . in the absence of indication of contrary intent, and where the arbitration clause is reasonably susceptible of such an interpretation, claims of fraud in the inducement of the contract (as distinguished from claims of fraud directed to the arbitration clause itself) will be deemed subject to arbitration.” (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323.

As noted by Defendants, here, there is not a single allegation in the Complaint that the arbitration provision in ¶31 is invalid because Plaintiff was allegedly fraudulently induced into initialing the arbitration provision. The Complaint instead alleges that Plaintiff’s “believed the property was being purchased for the full asking price of $515,000.00 by an investor”, despite the express language of the PSA/Addendum to the contrary, but “Plaintiff in fact has only received the total sum of $328,900.00 for the sale of the property and is still owed $186,100.00. (Complaint, ¶¶ 14 & 19).

Thus, Plaintiff is seeking monetary damages for the misrepresentations by his broker that he claims he relied upon. The Complaint does not have a single allegation that Plaintiff contends that the Arbitration provision in the PSA is in and of itself invalid. Thus, Plaintiff’s fraud claims do nothing to invalidate the binding Arbitration provision or the fact that under the controlling law cited above the cases must be ordered to Arbitration.

Plaintiff further contends that “Plaintiffs failure to read the documents may be excusable in light of evidence of some physical or other impairment, or of a fiduciary relationship and defendant’s misrepresentations.” (Opp., pg. 5, ln. 2-4). Failing to read or understand a contract under which one binds himself or herself to is no basis upon which relief may be had. “[A] party is bound by provisions in an agreement which he signs, even though he has not read them and signs unaware of their existence.” (N.A.M.E.S. v. Singer (1979) 90 Cal.App.3d 653, 656; see also George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 848–849.) “The failure of a [party] to carefully read the agreement and the amendment is not a reason to refuse to enforce the arbitration provisions.” (Powers v. Dickson, Carlson & Campillo (1998) 54 Cal. App. 4th 1102, 1115.)

Since all of the claims asserted in Plaintiff’s Complaint are subject to the arbitration provision contained in paragraph 31 of the PSA, this Court must issue an order pursuant to 9 USC § 3 staying this action pending the completion of the arbitration.

6. CASE # CASE NAME HEARING NAME MOTION TO COMPEL DEFENDANT DHSE, INC. TO PROVIDE FURTHER RESPONSES, WITHOUT OBJECTION CVPS2507128 SHANNON VS DHSE, INC. TO REQUESTS FOR PRODUCTION SET ONE (C.C.P. SEC. 2030.300) BY JENNIFER SHANNON Tentative Ruling: Granted.

Responding Defendants to provide further responses to request for production of documents no. 8, 9, 10, 12-28, and 30 within 30 days of this order.

Moving party to provide notice pursuant to CCP 1019.5.

Jennifer Shannon (“Plaintiff”) was employed by DHSE, Inc. (“Defendant”) as a General Manager. Defendant owns and operates a hotel and resort. Plaintiff alleges that she was subjected to unwanted sexual harassment by Defendant’s Vice President. She asserts that she complained multiple times about his conduct, but the conduct continued. She contends that she was