Mr. Kool's Collision, LLC v. Akzo Nobel Coatings, Inc.

never responded, hence, the Court granted Defendant's oral request to exclude Plaintiffs' expert at the continued FSC on 8/18/2026.

Hearing on Motion to Compel Arbitration; Hearing on Motion for Stay of Proceedings The Petition to Compel Arbitration and to Stay Proceedings filed by Akzo is denied. The Motion to Stay Action Pending Ruling on Petition to Compel Arbitration is denied as moot.

BACKGROUND Plaintiff Mr. Kool's Collision, LLC (Plaintiff) filed this action against Akzo Nobel Coatings, Inc. (Akzo), alleging that Akzo forged Plaintiff's signature on a supply agreement for automotive paint and invoked the forged instrument to justify a lien recorded against Plaintiff's assets. The causes of action in the First Amended Complaint (FAC) are: (1) Declaratory Relief; (2) Cancellation of Written Instrument; (3) Fraud in the Execution; and (4) Breach of Contract.

Akzo filed a Petition to Compel Arbitration and to Stay Proceedings on June 22, 2026, and a separately noticed Motion to Stay Action Pending Ruling on Petition to Compel Arbitration, rescheduled for hearing with the Petition. Plaintiff filed the FAC on August 5, 2026, and an Opposition to the Petition on August 6, 2026. No Opposition to the Motion was filed.

LEGAL STANDARD "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...." (Code Civ. Proc., Sec. 1281.2.)

"The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

A petition to compel arbitration must set forth the provisions of the written agreement verbatim or attach a copy of the agreement to the petition. (Cal. Rules of Court, rule 3.1330.)

Once the petitioner meets its burden, "the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges." (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160.)

ANALYSIS I. Governing Law Akzo seeks to compel arbitration under section 10.B of a supply agreement for automotive paint that Akzo transmitted to Plaintiff on July 24, 2024 and that Plaintiff's managing member, Carlos Henriquez, signed on July 29, 2024 (the July Agreement). (Bragdon Decl. P. 2 & Ex. C; Henriquez Decl. P.P. 8-9 & Exs. B, C.)

Section 10.B requires the parties to resolve "[a]ny dispute arising out of or relating to this Agreement including the breach, termination or validity thereof" through negotiation between senior executives followed by "binding arbitration conducted in accordance with the commercial rules and procedures of AAA Arbitration, with arbitration hearings to be held in Atlanta, Georgia." (Bragdon Decl., Ex. C, Sec. 10.B.)

Akzo argues that section 10.C of the July Agreement, which contains a choice-of-law provision selecting Georgia law, governs the enforceability of the arbitration provision. (Pet., at pp. 6-7.) Akzo also cites the Federal Arbitration Act. (Pet., at pp. 6, 9.)

"[E]ven if one of the parties contends that the FAA applies to their agreement to arbitrate, the FAA does not apply until the existence of an enforceable arbitration agreement is established under state law principles involving formation, revocation and enforcement of contracts generally." (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357 (Banner).)

The federal designation therefore leaves formation where state contract law puts it. Which state's law supplies those principles makes no difference on this record. Akzo argues that the arbitration provision is enforceable under Georgia and California law, and under the Federal Arbitration Act, and asks the Court to compel arbitration under any of the three. (Pet., at p. 6:10-13.)

The Petition presents one question of formation: whether a party is bound by a writing it did not execute. On that question, Akzo cites Georgia and California decisions side by side for a single proposition: that a party may become bound though it does not sign where its assent is otherwise indicated. (Reply, at pp. 6-7.)

On formation, Akzo identifies one difference between the two bodies of law, concerning the showing that satisfies a petitioner's initial burden rather than what manifests assent. (Pet., at p. 8:4-7.) That difference does not bear on the question the Petition presents. The Court analyzes formation under California law and would reach the same result under the Georgia rule Akzo states.

II. Existence of Agreement A. Initial Burden Plaintiff argues that Akzo has not established an agreement to arbitrate because Akzo never signed the July Agreement. (Opp., at pp. 11-12, 14.)

"[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.... 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." (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal).)

The trial court sits as a trier of fact, weighing the affidavits, declarations, and other documentary evidence, and any oral testimony the court receives in its discretion. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; Rosenthal, supra, 14 Cal.4th at pp. 413-414.)

Here, Akzo attached a copy of the July Agreement bearing the signature of Plaintiff's managing member, Carlos Henriquez. (Bragdon Decl. P. 2 & Ex. C.) Akzo has satisfied its initial burden. No declaration authenticating that signature was required, because Plaintiff does not dispute that Henriquez signed the July Agreement.

The ultimate burden of proving that the parties formed the agreement remains with Akzo. (Rosenthal, supra, 14 Cal.4th at p. 413.)

Plaintiff's document examiner, Beth Chrisman, examined a single questioned item, the signature page of a supply agreement bearing a handwritten date of January 14, 2025, and concluded that Henriquez did not sign it. (Chrisman Decl. P.P. 6, 18.) That page belongs to an executed supply agreement effective December 19, 2024 that Akzo provided to Plaintiff on August 12, 2025 (the December Agreement). (Henriquez Decl. P.P. 17-19 & Ex. D.)

Akzo does not seek to enforce the December Agreement and disclaims any reliance on it. (Reply, at p. 7.) The examiner's opinion therefore does not bear on whether the parties formed the July Agreement. The Court sets the December Agreement aside and does not decide whether Henriquez's signatures on it are genuine.

The Court does consider the December Agreement as evidence of how Akzo executes this contract form. Neither party contends that the Akzo signatures on it are anything other than Akzo's. Plaintiff's theory is that Akzo forged Henriquez's signatures on the instrument, which presupposes that Akzo executed it, and Akzo, while disclaiming reliance on the instrument, has never questioned its own signature blocks. (Henriquez Decl. P. 18.)

Akzo contends that Plaintiff's failure to contest the existence of the July Agreement is itself a failure to carry an evidentiary burden. (Reply, at pp. 7-8.) The authorities Akzo relies on address a different question. Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047 and Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747 govern the showing required to authenticate the opposing party's signature, a dispute this record does not present.

The question the Petition presents is whether Akzo expressed its own assent, and a movant whose assent does not appear in the writing must show that it expressed that assent to the other party. (Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 983 (Juen).) The burden of proving formation by a preponderance of the evidence stays with Akzo throughout, and the matter on which Plaintiff relies appears on the face of the instrument Akzo submitted.

B. Execution Condition The July Agreement states the manner in which Akzo would become bound. The paragraph immediately above the signature blocks provides: "All terms and conditions of this Agreement are subject to final approval by Akzo Nobel Coatings, Inc. Automotive and Aerospace Coatings N.A. and shall not be binding upon Akzo Nobel until executed by two authorized representatives of Akzo Nobel." (Bragdon Decl., Ex. C, at p. 6.)

The recital that follows states that the parties "have caused their duly authorized officers to execute this Agreement as of the Effective Date." (Ibid.) The page sets out two signature blocks for Akzo. Here, neither of Akzo's signature blocks is signed. The block for John Griffin, Business Director ASCNA, shows no signature and no date, and the block for Audie Harper, Regional Controller ASC Americas, shows no signature. (Ibid.)

Plaintiff's managing member signed and dated the customer block and signed again as guarantor. (Ibid.) Nothing in the record shows that two authorized representatives of Akzo executed the July Agreement. The provision runs to Akzo alone. It states that the writing does not bind Akzo, and it says nothing about Plaintiff.

"[A] contract is invalid if not signed by all parties purportedly bound only when it is shown, either by parol or express condition, that the contract was not intended to be complete until all parties had signed." (Angell v. Rowlands (1978) 85 Cal.App.3d 536, 542.) The July Agreement states that condition expressly.

Likewise, in Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, the employer's own handbook told employees that they must sign the arbitration agreement, and the court declined to imply an arbitration agreement with an employee who never signed it.

A contracting party may nevertheless waive a condition placed in a contract solely for that party's benefit, and a provision specifying the means by which assent is to be shown is such a condition. (Sabo v. Fasano (1984) 154 Cal.App.3d 502, 505.) Akzo was accordingly free to manifest its assent in some mode other than the one its form prescribes.

In Artukovich v. Pacific States Cast Iron Pipe Co. (1947) 78 Cal.App.2d 1, 3-4, the drafter of a clause requiring approval by its own officers was held bound without that approval, but the drafter there had fully performed, shipping the goods and accepting payment at the contract price, and the court rested on ratification by that completed performance before it mentioned waiver.

What the July Agreement's provision does is remove any presumption that Akzo assented in some other mode; whether Akzo did is decided on the evidence. "It is essential to the existence of every contract that there should be a reciprocal assent to a definite proposition, and when the parties to a proposed contract have themselves fixed the manner in which their assent is to be manifested, an assent thereto, in any other or different mode, will not be presumed." (Banner, supra, 62 Cal.App.4th at p. 359.)

Banner asked whether the record contained evidence that assent could be manifested in a manner other than the one the writing prescribed, and found none. (Id. at p. 360.) The question here is what this record shows. Consent to a contract must be communicated by each party to the other, and it is measured by the outward manifestations of the parties rather than by their unexpressed intentions. (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 173 (Serafin).)

Akzo's evidence of assent is therefore evidence of what Akzo conveyed to Plaintiff. Akzo negotiated the July Agreement with Plaintiff over several months, reduced to zero dollars the early termination fees Plaintiff's attorney objected to, and sent the revised document to Plaintiff for signature. (Henriquez Decl. P.P. 5-8 & Exs. A, B; Bragdon Decl., Ex. C, Sec. 8.C.) Plaintiff signed it and returned it with a completed W-9, a direct deposit authorization, and a voided check. (Henriquez Decl. P.P. 9-10 & Ex. C.)

Akzo's accounting reflects $52,493.35 in paint purchases by Plaintiff through September 30, 2025. (Henriquez Decl. P. 22 & Ex. E.) That evidence would carry Akzo's burden if the record ended there. It does not. Akzo never delivered an executed copy of the July Agreement, though Plaintiff asked for one repeatedly over several months. (Henriquez Decl. P.P. 11, 13.)

The December Agreement contains the identical execution language, and Akzo executed it in the manner that language prescribes. John Griffin signed one block over the date May 19, 2025, and a second representative signed the other as Regional Controller ASC Americas. (Henriquez Decl. P. 17 & Ex. D.)

And Akzo's October 20, 2025 demand letter recites that the parties "entered into a Supply Agreement on 19 December 2024," states that Akzo has terminated that agreement, and demands $150,000 under it. (Henriquez Decl. P. 22 & Ex. E.) The demand letter also computes an early termination fee of $36,000, which it waives. (Henriquez Decl., Ex. E.)

The July Agreement's section 8.C schedule sets every termination amount at zero dollars; the December Agreement's schedule sets the 100 percent amount at $36,000. (Bragdon Decl., Ex. C, Sec. 8.C; Henriquez Decl., Ex. D, Sec. 8.C.) The fee Akzo computed exists only in the December Agreement. Before this action was filed, Akzo identified an instrument other than the July Agreement as the operative agreement between the parties.

The Court has considered whether Akzo's execution of the December Agreement supports the opposite inference, that Akzo intended to be bound by the arbitration provision wherever it appears on this contract form and that the blank signature blocks on the July Agreement reflect an oversight.

In Basura v. U.S. Home Corp. (2002) 98 Cal.App.4th 1205, the builder had initialed the arbitration provisions in the purchase contracts of twenty of forty-eight buyers on the same form and left them blank in the rest, and the court directed an evidentiary hearing to determine whether the builder intended to be bound despite omissions that might be attributed to clerical error. (Id. at p. 1215.)

The inference is unavailable here for two reasons. Akzo executed the December Agreement in May 2025, ten months after Plaintiff signed the July Agreement, and the document Akzo executed was not the July Agreement but a different instrument bearing different terms and a different effective date. And "[w]e do not read Basura as dispensing with the contract formation requirement that a party's assent be expressed to the other party." (Juen, supra, 32 Cal.App.5th at p. 983.) What Akzo expressed to Plaintiff in August 2025 was that a different agreement governed.

Weighed together, the evidence does not show that Akzo's assent to the July Agreement is more probable than not. The purchases and payments Akzo relies on are as consistent with the distributor arrangement Plaintiff already had as with the July Agreement. Akzo never produced an executed July Agreement despite months of requests, executed the December Agreement in the manner the clause prescribes, and told Plaintiff before this action that the December Agreement governed.

D. Assent Without Execution First, Akzo argues that whether it signed the July Agreement is irrelevant, because a writing memorializing an arbitration agreement need not be signed by both parties. (Reply, at p. 6.)

Banner states the general rule: "it is not the presence or absence of a signature which is dispositive; it is the presence or absence of evidence of an agreement to arbitrate which matters." (Banner, supra, 62 Cal.App.4th at p. 361.) The Court accepts the proposition and has applied it.

Akzo's lead authority, Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390 (Cruise), illustrates the evidence that satisfies it. Kroger's employment application appeared on its letterhead, and the arbitration clause declared Kroger's agreement to arbitrate, so the court concluded that Kroger adopted its printed name as a signature. (Id. at pp. 398-399.) A printed name serves as a signature where it was placed or adopted with the intention of authenticating the writing. (Ibid., citing Marks v. Walter G. McCarty Corp. (1949) 33 Cal.2d 814, 820.)

Akzo's heading also appears atop the July Agreement. But the July Agreement does not declare Akzo's agreement; it names two representatives whose execution it requires and states that Akzo is not bound until they sign. Nothing on Kroger's application conditioned Kroger's being bound on Kroger's signature. The Court finds that Akzo did not adopt its printed heading as a signature. The form's text told Plaintiff that authentication would come by execution, and Akzo never treated the unexecuted form as signed, withholding an executed copy despite Plaintiff's repeated requests. (Henriquez Decl. P.P. 11, 13.)

Next, Akzo argues that its filing of this Petition evidences an intent to be bound, citing Serafin. (Reply, at p. 6.) "In Serafin, the employer's assent to the arbitration agreement was conveyed to the employee by the agreement itself." (Juen, supra, 32 Cal.App.5th at p. 982.)

The employer authored the policy on its own letterhead, the policy called for one signature only, the employee's acknowledgment, and the employer's later conduct, including an arbitration demand against the employee to recover an overpayment, confirmed the assent the writing conveyed. (Serafin, supra, 235 Cal.App.4th at pp. 175-177.)

The July Agreement conveyed no assent by Akzo; it told Plaintiff that Akzo would be bound only on execution. Akzo commenced no arbitration, and whether it performed under the July Agreement is the subject of Plaintiff's fourth cause of action.

Timing separates the cases as well. In Juen, the motion to compel came five months after the plaintiff sued, the record did not show assent communicated earlier, and the plaintiff's filing of the lawsuit was conduct "which itself may constitute a revocation of any outstanding offer by plaintiff to arbitrate." (Juen, supra, 32 Cal.App.5th at p. 983.) Akzo first sought arbitration two months after Plaintiff filed this action seeking to void both instruments, and ten months after telling Plaintiff that a different agreement governed. The Petition shows Akzo's position in 2026. It does not show assent in 2024, when the July Agreement could still have been concluded.

Akzo also cites Civil Code sections 3388 and 1589. (Reply, at pp. 6-7.) Civil Code section 3388 permits specific enforcement of a written contract against the party who signed it, though the party seeking enforcement did not sign, where the latter has performed or offers to perform.

"Civil Code section 3388 is a specific performance remedy provision for breach of a contract enforceable in equity. The offer to perform referenced in the statute is not a substitute for the mutual assent required to form a bilateral contract; the remedy requires the existence of an agreement." (Juen, supra, 32 Cal.App.5th at p. 983.) Because Akzo manifested no assent to the July Agreement in any mode, Henriquez's signature concluded no contract for section 3388 to enforce.

The same answer disposes of Arrow Flying Service, Inc. v. Universal Flyers Ground School (1950) 99 Cal.App.2d 49, 51, which Akzo cites with the statute; the writing there fixed no manner of assent, and the court held only that the plaintiff could try to show that the one-signature writing was a subsisting agreement.

Civil Code section 1589 provides that voluntary acceptance of the benefit of a transaction is equivalent to consent to the obligations arising from it. Plaintiff's assent to the July Agreement is not what is missing. The benefit Akzo identifies is a $150,000 advance.

The pleadings allege two rebate payments, both by Industrial Finishes, Akzo's distributor, and neither by Akzo. Industrial Finishes paid the first, of $150,000, in May 2024 under the separate distributor agreement between Industrial Finishes and Plaintiff, two months before Akzo transmitted the July Agreement, and a payment made before the writing existed cannot manifest assent to the writing. (Complaint P. 16; FAC P. 16; cf. Banner, supra, 62 Cal.App.4th at p. 362 [payment and marketing under an earlier oral agreement were not evidence of assent to draft agreements sent later].)

Industrial Finishes paid the second in November 2024 as a gesture of good faith that Henriquez was told was made on Akzo's behalf, and both pleadings allege that Plaintiff never received the advance from Akzo. (Complaint P.P. 21, 26; FAC P. 21.) Akzo submitted no evidence that it made, directed, or reimbursed either payment; its evidence is the Bragdon declaration, which attaches the July Agreement and says nothing about payments. (Bragdon Decl. P. 2 & Ex. C.) Akzo's own demand letter claims the $150,000 advance under the December Agreement and demands its repayment. (Henriquez Decl. P. 22 & Ex. E.)

Finally, Akzo argues that Plaintiff accepted the July Agreement's benefits, continues to sue on it, and cannot avoid the arbitration provision of a contract it uses. (Reply, at pp. 6-7.) Akzo relies on Vita Planning & Landscape Architecture, Inc. v. HKS Architects, Inc. (2015) 240 Cal.App.4th 763, which held that an unsigned contract existed where nothing in the writing conditioned either party's assent on execution, both parties performed under the writing, and the party denying the contract had attached the writing to its complaint and sued for its breach.

Akzo also relies on Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 306, which states that a party may not use a contract containing an arbitration clause to its advantage and then avoid the clause.

In Vita Planning the writing was silent about how assent would be shown, so the parties' conduct could conclude the contract. The July Agreement is not silent; it made execution the mode of Akzo's assent, and the Court has found that Akzo manifested assent in no other mode.

Nor does the FAC use the July Agreement the way Vita Planning 's complaint used the writing there. The first three causes of action ask the Court to cancel the instruments and to declare that no enforceable agreement exists, and the fourth pleads breach only in the alternative, should the Court or a jury determine that a contract was formed. (FAC P.P. 60, 62.) The exhibit attached to the pleadings is the instrument itself, and its final page contains Akzo's unexecuted signature blocks. (Bragdon Decl., Ex. C, at p. 6.) The attachment admits the writing; it does not admit Akzo's assent to the writing.

Estoppel enforces an arbitration agreement the parties concluded against a party who would escape it, and like Civil Code section 3388 it is not a substitute for the assent that forms one.

III. Delegation Akzo argues in the alternative that the reference in section 10.B to disputes over the Agreement's "validity" commits the question of enforceability to the arbitrator, so that the arbitrator decides the effect of Akzo's non-signature. (Reply, at pp. 8-9.)

A delegation of gateway questions "presupposes the existence of an agreement between the parties, which the court necessarily had to decide before it could enforce any such delegation." (Garcia v. Stoneledge Furniture LLC (2024) 102 Cal.App.5th 41, 50.) Under the Federal Arbitration Act as well, whether any agreement between the parties was ever concluded is a question for the court. (Buckeye Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 444, fn. 1.)

Here, section 10.B is a term of the July Agreement. Akzo has not proved that the parties concluded the July Agreement, so it has not proved that they concluded the provision within it on which the delegation argument depends.

IV. Superseded Pleading Akzo argues that the original Complaint's factual allegations "are judicial admissions and are binding on Plaintiff," and that the admissions establish the July Agreement and the arbitration provision within it. (Pet., at pp. 8-9; Reply, at p. 4.) Plaintiff answers that the FAC has superseded the original Complaint, and that the Petition, which rests on the superseded pleading, must be denied. (Opp., at pp. 4, 9-10.)

"It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) "'An allegation or failure to deny in a pleading superseded by later amendment is of course not a judicial admission. The majority view nevertheless treats it as any other prior statement of a party, i.e., as an evidentiary admission.'" (Walker v. Dorn (1966) 240 Cal.App.2d 118, 120, quoting Witkin, Cal. Evidence (1958) Sec. 224, p. 251.)

The original Complaint's allegations are therefore not judicial admissions and do not bind Plaintiff. Neither does the supersession decide the Petition for Plaintiff, because the allegations remain evidence, and the Court weighs them as it weighs any prior statement of a party.

Akzo's Georgia authority on the conclusive effect of pleadings does not change their status. (Pet., at p. 8.) The admissibility and effect of a party's statements in a California action are governed by the law of this forum, and the choice-of-law provision in section 10.C does not govern them. (Grant v. McAuliffe (1953) 41 Cal.2d 859, 862; Evid. Code, Sec. 300.)

The original Complaint alleges that the parties "voluntarily and without duress entered into the July 24, 2024 Supply Agreement," that Plaintiff performed, and that the agreement "was negotiated, partially performed upon, and/or breached" in this county. (Complaint P.P. 5, 24, 25.) The allegations do not establish Akzo's assent.

"[A] mere conclusion, or a 'mixed factual-legal conclusion' in a complaint, is not considered a binding judicial admission." (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324; see Bahan v. Kurland (1979) 98 Cal.App.3d 808, 812 [allegation that a party acted within the scope of employment was not a binding admission].) An allegation that the parties entered into the July Agreement is a mixed conclusion of that kind. It concedes the underlying facts and attaches a legal label to them.

"'[W]hether a certain or undisputed state of facts establishes a contract is one of law for the court.... On the other hand, where the existence and not the validity or construction of a contract or the terms thereof is the point in issue, and the evidence is conflicting or admits of more than one inference, it is for the jury or other trier of the facts to determine whether the contract did in fact exist....'" (Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407, quoting 17A C.J.S., Contracts, Sec. 611, pp. 1224-1225.)

On this Petition both branches assign formation to the Court, which sits as the trier of fact. The instrument attached to the original Complaint is the July Agreement. (Complaint P. 11 & Ex. C; Bragdon Decl. P. 2 & Ex. C.) The execution provision on its final page governs whether that instrument bound Akzo.

The Court accepts the allegations of negotiation, execution by Plaintiff, and Plaintiff's performance. The FAC alleges the same facts. It alleges that Akzo negotiated the July Agreement with Plaintiff and that the draft "was the result of both parties' input and negotiation," that Henriquez signed the July Agreement on Plaintiff's behalf on July 29, 2024, and that Plaintiff performed. (FAC P.P. 11, 44, 63.) Henriquez attests to the same facts under oath. (Henriquez Decl. P.P. 5-10 & Exs. A, B, C.) None of it shows that Akzo executed the July Agreement or otherwise manifested assent to it.

Akzo argues that the FAC impermissibly contradicts the original Complaint, and that the Court should disregard the FAC's new allegations as pleaded only to avoid arbitration. (Reply, at p. 4.) The argument's premise is that the original Complaint's allegations were binding judicial admissions, and they were not, as discussed above. Nor is any pleading's allegation assumed true on this Petition; the Court weighs each pleading as a statement of the party.

On the facts material to formation, the pleadings present no contradiction to disregard. The FAC continues to allege negotiation, Henriquez's signature, and Plaintiff's performance, and what it alleges about Akzo's execution is what the original Complaint alleged. "The July 24, 2024 Supply Agreement was signed by PLAINTIFF, but not by DEFENDANT." (FAC P. 62.)

The original Complaint alleged more. It alleged that Akzo "never intended to execute the July 24, 2024 Supply Agreement" and that Plaintiff had not been given a fully executed copy. (Complaint P.P. 14, 39.) What the FAC changed is the relief sought. The fourth cause of action opens by denying that an enforceable agreement was formed and pleads breach only in the alternative, should the Court or a jury determine that one existed. (FAC P. 60.)

Akzo cites the original Complaint as alleging that Plaintiff was paid $150,000 pursuant to the Supply Agreement. (Reply, at p. 3.) The original Complaint does not so allege. It alleges two $150,000 payments, both by Industrial Finishes, Akzo's paint distributor, and neither under the July Agreement. Industrial Finishes paid the first in May 2024 pursuant to the distributor agreement between Plaintiff and Industrial Finishes, and paid the second in November 2024 as a gesture of good faith that Henriquez was told was made on Akzo's behalf. The pleading adds that Plaintiff never received the advance rebate from Akzo. (Complaint P.P. 16, 21, 26.)

The FAC alleges the same two payments, describing the second as an additional rebate. (FAC P.P. 16, 21.) Payments the pleadings attribute to the distributor, under the distributor agreement or as a gesture of good faith, are not evidence that Akzo assented to the July Agreement.

Because Akzo has not proved that the parties agreed to arbitrate, the Petition to Compel Arbitration is denied. The Motion to Stay Proceedings is denied as moot.

CONCLUSION The Petition to Compel Arbitration and to Stay Proceedings filed by Akzo is denied. The Motion to Stay Action Pending Ruling on Petition to Compel Arbitration is denied as moot. | Home -->)" -->