JONES, ET AL. v. BRISCOMBE, ET AL.

(2) fraud and intentional misrepresentation; (3) breach of contract; (4) breach of fiduciary duty; (5) restitution; (6) conversion; and (7) declaratory relief.

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2. Evidentiary Objections

Plaintiffs filed two objections. The court sustains Objection Number 1. The court also

sustains Objection Number 2 with respect to the term “timely.”

3. Request for Judicial Notice

Plaintiffs request the court to take judicial notice of two documents, Exhibit A

(unrecorded property records) and Exhibit B (a recorded quitclaim deed). Neither

exhibit is attached to the request for judicial notice. The court denies the request on this

ground. (Cal. Rules of Court, rule 5.115.) Even if plaintiffs had attached copies of the proposed material to the request, it appears to the court that the exhibits are not

necessary, helpful, or relevant to the dispute raised by the instant petition. (Jordache

Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.)

4.

Discussion

As an initial matter, defendant claims that the issue of arbitrability of the matter is

an issue for the arbitrator and not this court. Alternatively, defendant argues that the

Agreement is valid and enforceable, and covers the dispute raised in plaintiffs’

complaint. Further, defendant argues that, as a third-party beneficiary to the

Agreement, plaintiff Tomolillo must be compelled to arbitrate her claims.

Plaintiff opposes the petition on the following grounds: (1) this court should decide

arbitrability because the Agreement does not clearly and unmistakably delegate such

responsibility to the arbitrator; (2) the Agreement is unenforceable because it is procedurally and substantively unconscionable; (3) defendant Sean Briscombe, as an

individual, is not a party to the Agreement and thus, does not have the right to compel

arbitration; and (4) plaintiff Tomolillo is not a signatory to the Agreement and cannot be

compelled to arbitrate.

4.1. Applicable Law

Both state and federal law have statutory schemes for the enforcement of arbitration agreements. The Federal Arbitration Act (“FAA”) (9 U.S.C. § 1, et seq.)

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“governs agreements in contracts involving interstate commerce .... [Citations.]” (Cable

Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1351 (Cable Connection).) The

FAA has both substantive and procedural provisions. (Avila v. Southern Cal. Specialty

Care, Inc. (2018) 20 Cal.App.5th 835, 840.) Section 2 of the FAA provides in part that “[a]

written provision in ... a contract evidencing a transaction involving commerce to settle

by arbitration a controversy thereafter arising out of such contract or transaction ... shall

be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in

equity for the revocation of any contract ....” (9 U.S.C. § 2.) This statute, “declaring the enforceability of arbitration agreements, ‘create[s] a body of federal substantive law of

arbitrability, applicable to any arbitration agreement within the coverage of the Act.’

[Citation.]” (Cable Connection, supra, at pp. 1350–1351.)

However, in general, the FAA’s procedural provisions apply only in federal court, not

in state court. (Cable Connection, supra, 44 Cal.4th at p. 1351; Victrola 89, LLC v. Jaman

Properties 8 LLC (2020) 46 Cal.App.5th 337, 345 (Victrola).) In state court, the procedural

rules of the California Arbitration Act (“CAA”) “apply by default to cases brought in

California courts, including those in which the FAA governs the arbitrability of the

controversy.” (Quach v. Cal. Commerce Club, Inc. (2024) 16 Cal.5th 562, 582 (Quach).)

Nevertheless, “the FAA’s procedural rules may apply if the parties expressly agree they

do ....” (Ibid.; accord, Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th

376, 394 (Cronus).) Code of Civil Procedure section 1281.2 is part of the CAA. (Cronus, supra, 35 Cal.4th

at p. 387.) Code of Civil Procedure section 1281.23 addresses the “ ‘situation that arises

3 Code of Civil Procedure section 1281.2 states in part: “On petition of a party to an

arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] ... [¶] (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or

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when a controversy’ ” is covered by an arbitration agreement but “ ‘also affects claims

by or against other parties not bound by the arbitration agreement.’ ” (Cronus, supra, at

p. 393.)

Critically, Code of Civil Procedure section 1281.2 gives the trial court “the discretion

to, among other things, stay or deny arbitration if one or more parties to the action is

not subject to arbitration, and multiple proceedings might result in conflicting rulings

involving the same transaction. [Citation.]” (Gravillis v. Coldwell Banker Residential

Brokerage Co. (2006) 143 Cal.App.4th 761, 783.) In contrast, the FAA “does not authorize courts ... to refuse to enforce a valid

arbitration provision to avoid duplicative proceedings or conflicting rulings. [Citation.]”

(Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1263; accord, Valencia v.

Smyth (2010) 185 Cal.App.4th 153, 156–157 (Valencia).) Instead, the FAA requires

arbitration to proceed on all claims within the scope of the arbitration agreement.4

(Valencia, supra, at p. 157.) In other words, “deciding related disputes in different

forums occurs because the FAA ‘requires piecemeal resolution when necessary to give

effect to an arbitration agreement.’ [Citation.]” (Mastick, supra, at p. 1263.)

series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (Id., subd. (c).) Section 1281.2 further states: “If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c), the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.” (Id., last par.) 4 The distinction is significant in this case where plaintiffs oppose the petition, in part, on

the grounds that there may be conflicting rulings if the court orders some, but not all parties to arbitrate (i.e., Sean Briscombe and Christina Tomolillo, both of whom plaintiffs claim are not parties to the Agreement and cannot enforce the Agreement and/or be compelled to arbitrate under the Agreement).

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“In accordance with choice-of-law principles, the parties may limit the trial court’s

authority to ... deny arbitration under the CAA by adopting the more restrictive

procedural provisions of the FAA.” (Valencia, supra, 185 Cal.App.4th at p. 157; accord,

Victrola, supra, 46 Cal.App.5th at p. 346.) For example, in Victrola, the arbitration

provision stated, “ ‘Enforcement of this agreement to arbitrate shall be governed by the

Federal Arbitration Act....’ ” (Id. at p. 343, boldface omitted.) The appellate court

determined that “when an agreement provides that its ‘enforcement’ shall be governed

by the FAA, the FAA governs a party’s motion to compel arbitration.” (Id. at p. 346.) The appellate court concluded that because “the parties incorporated the procedural

provisions of the FAA into the [a]greement,” the trial “court could not look to [s]ection

1281.2(c) to deny the” motion to compel arbitration. (Id. at pp. 342-343.)

Here, there is no mention of the FAA in the Agreement. Therefore, the court easily

concludes that the FAA does not apply.

Absent a choice-of-law provision expressly mandating the application of the

procedural law of another jurisdiction, the provisional provisions of the CAA apply by

default. (Royal Alliance Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092, 1104, fn.

4.) In this case, the Agreement provides that the terms of the Agreement “shall be

governed and construed in accordance with the internal law of the state of Texas

applicable to contracts made and to be wholly performed therein, without giving effect

to Texas’s principles of choice of law and conflicts of law.” (Petn., Ex. A at ¶ 9 [“Choice of Law”].)

Defendant does not expressly address this issue but appears to take the position

that the CAA applies. (See, Petn., at 6:12 [“That is all the California Arbitration Act

requires at this stage.”].) Plaintiffs do not address the issue, either.

For purposes of deciding the instant petition to arbitrate, the court needs additional

briefing from the parties to determine whether the Texas choice-of-law provision in the Agreement results in the displacement of the CAA procedural rules.

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TENTATIVE RULING # 7: THE COURT, ON ITS OWN MOTION, CONTINUES THE HEARING

TO 1:30 P.M., FRIDAY, OCTOBER 16, 2026, IN DEPARTMENT FOUR AND DIRECTS THE

PARTIES TO SUBMIT SUPPLEMENTAL BRIEFING ON THE ISSUE OF WHETHER THE TEXAS

CHOICE-OF-LAW PROVISION IN THE ARBTIRATION AGREEMENT DISPLACES THE

PROCEDURAL RULES OF THE CALIFORNIA ARBITRATION ACT FOR THE PURPOSES OF

DETERMINING THIS PETIITON. SUPPLEMENTAL BRIEFS SHALL BE FILED AND SERVED

NO LATER THAN OCTOBER 6, 2026.