Kennedy v. Maksoud

Thus, the Court GRANTS the motion and awards the total amount of $40,503, broken down as follows: $525 x 63 (Scott) plus $345 x 12.6 (Tungate) plus $395 x 7.8 (Tungate).

Counsel for Plaintiff shall provide notice of this ruling. 8 Jackson v. Before the Court is a motion by Plaintiff Chapter Kris Jackson to Phancao, et. al. compel Defendant Patrick Phancao to participate in binding arbitration of plaintiff’s complaint. The motion is DENIED, as set forth herein.

Both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and Code Civ. Proc. §1281.2). "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.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; See also Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 91-92).

Here plaintiff has failed to establish the existence of an arbitration agreement between Jackson and Phancao. There is no evidence submitted along with the motion demonstrating the existence of an arbitration agreement. “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Rule 3.1306(a).) Accordingly, the motion is DENIED.

In addition, although plaintiff asserts the arbitration provision in the 2025 BMO Handbook is an arbitration agreement between Phancao and Jackson, the 2025 BMO Handbook contains an arbitration agreement between BMO and the account holder. (See page 19 of the 2025 BMO Handbook) Further, while plaintiff claims the arbitration provision in the 2025 BMO Handbook applies to banking transactions in 2015 and 2016 at the Bank of the West, such has not been established. Finally, plaintiff alleges “this is an independent action in equity” to set aside a default and default judgment based on fraud and not a dispute over Bank of the West’s handling of any banking transactions. (Complaint ¶14)