Vivek Shah v. Alyk, Inc. and Forum Brands Holdings, Inc.

guardian of the estate; the statute makes the two alternatives. (Code Civ. Proc., Sec. 372, subd. (a)(1) [a minor "shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending,"].) Attachment 18a(1) states that the proceeds "will be distributed by check to Guardian Ad Litem Alondra Gonzalez." Probate Code section 3611 lists the dispositions the Court may order, and a check to a guardian ad litem is not one of them.

The section 3611 list does include a disposition fit for a balance of this size. Subdivision (e) allows the remaining balance to be paid to a parent of the minor without bond where it does not exceed $5,000.00, "upon the terms and under the conditions specified in Article 1 (commencing with Section 3400) of Chapter 2." (Prob. Code, Sec. 3611, subd. (e).) Those conditions require that the minor's total estate, including the money to be delivered, not exceed $5,000.00 in value, and that the parent give the person making the delivery "written assurance, verified by the oath of such parent," to that effect. (Prob.

Code, Sec. 3401, subd. (c).) Petitioner completed item 18a instead, and gave no assurance. Based on this and the other defects noted above, the Court will continue the hearing to permit Petitioner to file an amended petition and attachments. CONCLUSION The Petition for Approval of Compromise of Minor's Claim is continued to a date the Court will select in consultation with counsel.

NATURE OF PROCEEDINGS: Hearing on Petition to Compel Arbitration The Petition to Compel Arbitration and to Stay Judicial Proceedings is denied. BACKGROUND Petitioner Vivek Shah (Petitioner) filed this special proceeding against Alyk, Inc. (ALYK) and Forum Brands Holdings, Inc., d/b/a LOLA (Forum Holdings) (collectively, "Respondents"), alleging that Respondents unlawfully intercepted his electronic communications on the website www.mylola.com in violation of the California Invasion of Privacy Act.

The Petition seeks an order compelling arbitration of that claim under Code of Civil Procedure section 1281.2 and a stay of judicial proceedings under section 1281.4. Forum Holdings filed an Opposition. ALYK filed no response. REQUEST FOR JUDICIAL NOTICE Petitioner requests judicial notice of seven exhibits attached to the declaration of Salar Atrizadeh. (RJN, p. 2:3-8.) The request is granted as to Exhibits D, E, and F, the proofs of service filed in this action. (RJN, p. 2:18-19; Evid. Code, Sec. 452, subd. (d).)

Notice extends to the fact and date of filing, not to the truth of the matters recited in those documents.

The request is denied as to Exhibits A, B, and C, which are captures of pages from the LOLA website. Petitioner asks the Court to notice the existence and content of the statements appearing on those pages, and not the truth of any disputed hearsay matter. (RJN, p. 2:9-11.) The contents of a website are "'plainly subject to interpretation and for that reason not subject to judicial notice.'" (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194, quoting L.B. Research & Education Foundation v.

UCLA Foundation (2005) 130 Cal.App.4th 171, 180, fn. 2.) However, Petitioner's counsel declares that he personally reviewed, prepared, and compiled the exhibits, and the Court considers them as evidence for what they show. (Atrizadeh Decl., P.P. 3, 5-7.) Exhibit G is a capture of an internet search result. Petitioner asks the Court to notice the existence and content of the displayed text and disclaims any request to notice the truth of an AI-generated statement or a disputed factual assertion appearing in it. (RJN, p. 2:19-25.)

On those terms the exhibit establishes only that a search engine displayed words on a screen, which bears on nothing the Petition puts in issue. The request is denied as to Exhibit G. 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.) Because the agreement's existence is a statutory prerequisite to an order compelling arbitration, "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 court decides that question as trier of fact on the declarations and documentary evidence, taking oral testimony in its discretion. (Id. at pp. 413-414.) ANALYSIS I. The Agreement Petitioner argues that Respondent's Terms of Service contain a written arbitration provision covering his claims. (Mem., p. 2:26-28.) Forum Holdings argues that the document identifies a different company. (Opp., p. 3:21-27.) Petitioner accepts that he bears the burden of establishing an agreement. (Reply, pp. 3:27 - 4:1.)

The writing Petitioner produced names its counterparty in its opening sentence. "Please read this Terms of Service Agreement (collectively with LOLA's Privacy Policy, 'Terms of Service') fully and carefully before using www.mylola.com (the 'Site') and the services, features, content or applications offered by Forum Health & Personal Care,

LLC, D.B.A LOLA ('LOLA', 'we', 'us' or 'our') (together with the Site, the 'Services')." (Pet., Ex. A, p. 1.) That opening sentence gathers the Terms of Service and the Privacy Policy under one name for convenience, and it is also the sentence defining LOLA as Forum Health. A defined term carries its definition into every operative clause using it, and the arbitration provision uses it throughout, providing among other things that the arbitration "will decide the rights and liabilities, if any, of you and LOLA." (Pet., Ex.

A, Sec. 13.3.) The counterparty to the agreement Petitioner asks the Court to enforce is Forum Health & Personal Care, LLC (Forum Health). II. Delegation Petitioner argues that the arbitration provision assigns threshold questions to the arbitrator, including disputes over which entities are proper parties. (Reply, pp. 6:13 - 7:8.) He relies on the text of the provision and on its incorporation of the JAMS rules. (Reply, p. 6:13-25.) The provision states that "[t]he arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable." (Pet., Ex.

A, Sec. 13.3.) " When the parties' contract delegates the arbitrability question to an arbitrator, a court may not override the contract.'" (Henry Schein, Inc. v. Archer & White Sales, Inc. (2019) 586 U.S. 63, 68.) Here, the question Petitioner would send to the arbitrator is whether Forum Holdings is a party to the document that contains the clause. California law assigns that question to the trial court. "'[A]n arbitrator has no power to determine the rights and obligations of one who is not a party to the arbitration agreement. [Citation.]

The question of whether a nonsignatory is a party to an arbitration agreement is one for the trial court in the first instance.'" (Benaroya v. Willis (2018) 23 Cal.App.5th 462, 469, quoting American Builder's Assn. v. Au-Yang (1990) 226 Cal.App.3d 170, 179.) III. Forum Holdings Petitioner argues that Forum Holdings is the company the Terms of Service name as LOLA, because other pages on the same website identify it that way. (Reply, p. 2:7-15.) The LOLA Privacy Policy states that it "describes the policies and procedures of FORUM BRANDS HOLDINGS, INC, D.B.A LOLA." (Atrizadeh Decl., P. 7, Ex.

C.) The site footer reads "(c) Forum Brands, LLC 2026." (Atrizadeh Decl., P.P. 6, 7, Exs. B, C.) The Terms of Service direct arbitration correspondence to 22 W. 19th Street, Floor 5, New York, and give [email protected] as the address for electronic notice, and the JAMS demand used both. (Pet., Ex. A, Sec.Sec. 13.2, 18.6; Shah Decl., Ex. 1.) Those materials name three companies. Forum Brands Holdings, Inc. is the Delaware corporation named as a respondent here. Forum Health & Personal Care, LLC is the limited liability company the Terms of Service identify.

Forum Brands, LLC, the company in the

footer, is neither. The three share an assumed name, but "[u]se of a fictitious business name does not create a separate legal entity." (Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348.) Petitioner's caption is illustrative of that point. Naming "Forum Brands Holdings, Inc., d/b/a LOLA" sues Forum Brands Holdings, Inc., and the assumed name adds nothing to the corporation it follows. Every version of the Terms of Service in this record identifies Forum Health. Exhibit A to the Petition holds two captures of the page.

The first runs eleven pages under a print header reading "7/9/25, 11:57 PM," the day Petitioner used the website, and it contains the arbitration provision in full. (Pet., Ex. A, pp. 1-11; Shah Decl., P. 7.) The second is undated and closes on the site footer. (Pet., Ex. A.) Counsel captured the page again on April 21, 2026, more than two months after this proceeding was filed, and it read the same way, as did the historical excerpt he compiled. (Atrizadeh Decl., P.P. 5, 6, Exs. A, B.) The only website page in the record naming Forum Holdings as LOLA is the Privacy Policy captured on April 23, 2026, and nothing dates its language to the period when Petitioner used the site. (Atrizadeh Decl., P. 7, Ex.

C.) Petitioner submitted his demand to JAMS on July 21, 2025, naming ALYK as the only respondent and giving 22 W. 19th Street and [email protected] as Alyk's contact information. (Shah Decl., Ex. 1.) JAMS corresponded with ALYK at that address, invoiced it for the balance of the filing fee, and closed the file on September 29, 2025 with $1,750 outstanding. (Shah Decl., P. 15, Ex. 2.) Forum Holdings appears nowhere in that file. Petitioner produced the writing with an arbitration provision, and the writing identifies a company he did not name in his petition.

No responsive evidence was needed to answer that showing, and Forum Holdings submitted none. The Court finds that Petitioner has not proved by a preponderance of the evidence that Forum Holdings agreed in writing to arbitrate with him. (Rosenthal, supra, 14 Cal.4th at p. 413.) IV. Related-Entity Theories Petitioner argues that a nonsignatory may be bound under ordinary principles of contract and equity. (Reply, pp. 5:18 - 6:10.) He invokes agency, alter ego, equitable estoppel, successor liability, assignment, and third-party beneficiary doctrine. (Ibid.) "The general rule is that one must be a party to an arbitration agreement either to be bound by or to invoke it." (Ford Motor Warranty Cases (2025) 17 Cal.5th 1122, 1128 (Ford).) "As one authority has stated, there 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.'" (Suh v.

Superior Court (2010) 181 Cal.App.4th 1504, 1513.) Here, the three facts Petitioner offers, the shared mailing address, the shared electronic notice address, and the shared brand across the website's legal pages, satisfy none of them. (Reply, p. 6:1-4.) They show three companies using one website and one assumed name.

They do not show that any company acted for the others, that one took over the other's business, or that the Terms of Service were made for the other's benefit. Petitioner submits no assignment and no acquisition document. Alter ego requires two showings: "(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow." (Mesler v.

Bragg Management Co. (1985) 39 Cal.3d 290, 300.) Neither appears on this record. Ownership is nowhere in it: no evidence traces either company to the other, or both to a common owner, and a shared address and a shared brand reveal nothing about commingled funds, common officers, or disregarded corporate formalities. Nor does respecting the two forms work an injustice. Forum Holdings took on no obligation that its separateness now shields; the writing names Forum Health, and the remedy for naming the wrong company is naming the right one.

Read at their strongest, the three facts suggest that the companies presented themselves to the world as a single entity under the LOLA name. That is a theory of ostensible agency, and it is measured at formation. An agency is ostensible when the principal, intentionally or by want of ordinary care, causes a third person to believe another to be his agent. (Civ. Code, Sec. 2300.) A principal is bound by the acts of an ostensible agent "to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof." (Civ.

Code, Sec. 2334.) The liability Petitioner incurred was his assent to the Terms of Service on July 9, 2025, so the appearance must have existed that day, and he must have dealt on the faith of it. (Shah Decl., P. 7.) The only page attributing the LOLA name to Forum Holdings is the Privacy Policy captured nine months later, and nothing dates its language to the day Petitioner used the site. (Atrizadeh Decl., P. 7, Ex. C.) Nothing in his declaration states that he read that page or gave any thought to the company behind the name.

And his conduct nearest to formation points the other way. Twelve days after using the site, when he first had occasion to name his counterparty, he named ALYK, which appears on no LOLA page. (Shah Decl., Ex. 1.) Whatever the website induced him to believe on July 9, it was not that Forum Holdings was his counterparty. Nor is there evidence supporting assignment or estoppel. The Terms of Service provide that "[w]e may assign, transfer or delegate any of our rights and obligations hereunder without consent." (Pet., Ex.

A, Sec. 18.4.) A clause permitting assignment establishes that Forum Health was free to assign the contract, not that it did. Estoppel is a theory under which a nonsignatory invokes an arbitration clause against a signatory whose claims are "intimately founded in and intertwined with" the contract. (Ford, supra, 17 Cal.5th at p. 1126.) Petitioner identifies no benefit Forum Holdings has taken under the Terms of Service, and Forum Holdings asserts no right under them. V. ALYK Forum Holdings argues that the Terms of Service bind none of the respondents named in this proceeding. (Opp., p. 3:23-28.)

ALYK was served with the Petition in March 2026 and has filed no response. Under Code of Civil Procedure section 1290, "[t]he allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response

is duly served and filed." An admission establishes the allegation as pleaded, and it reaches material facts properly pleaded, "not contentions, deductions or conclusions of fact or law." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Petition alleges that "Respondent's website Terms of Service contain a written arbitration agreement requiring that disputes between users and Respondent be resolved through binding arbitration." (Pet., p. 2:25-26.) It never says which respondent. The Petition names two companies and twenty Doe respondents, and it defines "Respondent" nowhere.

Its only allegation about who the respondents are is that "Respondents are corporations with their principal place of business in Delaware and operate commercial websites accessible to California residents." (Pet., p. 2:15-17.) As pleaded, the allegation does not identify ALYK as the company that offered these Terms of Service or as the operator of www.mylola.com. The one document that does identify the offering company is the writing Petitioner attached, and it names Forum Health. (Pet., Ex. A, p. 1.)

Petitioner bears the burden of proving by a preponderance of the evidence that an agreement to arbitrate exists between himself and ALYK. (Rosenthal, supra, 14 Cal.4th at p. 413.) Nothing he submitted names ALYK as a party to the Terms of Service, shows that ALYK operated www.mylola.com, or shows that ALYK succeeded to Forum Health's rights under the contract. That includes the internet search capture, taken as Petitioner offers it. Accordingly, the Petition is denied as to ALYK as well. VI. Dismissal Forum Holdings asks the Court to deny the Petition and to dismiss this proceeding with prejudice. (Opp., p. 5:27.)

It describes the Petition as frivolous. (Opp., p. 4:25.) Petitioner answers that he named the LOLA-side entities the website and the arbitration materials identified. (Reply, p. 5:6-9.) No motion for sanctions is before the Court, and this ruling makes no finding on that characterization. Petitioner did not establish, on the record he assembled, that either company he named agreed to arbitrate with him. A denial on that ground decides what this record shows and forecloses nothing about a differently supported petition against a differently named respondent.

The request to dismiss with prejudice is denied. VII. Alternative Relief Petitioner asks the Court to compel arbitration as to the proper LOLA operator. (Reply, p. 2:21-23.) Forum Health is not a respondent in this proceeding, and no proof of service names it. The Court cannot order a company that is not before it to arbitrate. He asks in the further alternative for leave to amend or to substitute the proper operator and for limited discovery directed to that company's identity. (Reply, p. 8:7-11.)

No motion for that relief is before the Court, and the request appears for the first time in the Reply. Rosenthal counsels oral testimony and cross-examination where enforceability "may depend upon which of two sharply

conflicting factual accounts is to be believed." (Rosenthal, supra, 14 Cal.4th at p. 414.) No such conflict exists here. Forum Holdings submitted no factual account, and the failure of proof appears on the face of the document Petitioner produced. The request is denied without prejudice to a properly noticed motion. Section 1281.2 conditions relief on a refusal by a party to the agreement, and Petitioner has proved no agreement with either respondent. The Court therefore does not reach Forum Holdings' argument that it never refused to arbitrate, whether Petitioner assented to the Terms of Service himself, the scope of the arbitration provision, the arbitrability of his statutory claims, the adequacy of the designated arbitral forum, or the defenses the Petition anticipates.

The Court likewise leaves undecided the remaining relief the Petition requests, including a stay under Code of Civil Procedure section 1281.4, the protections of sections 1281.98 and 1281.99, and costs. Accordingly, the Petition to Compel Arbitration and to Stay Judicial Proceedings is denied. CONCLUSION The Petition to Compel Arbitration and to Stay Judicial Proceedings is denied. | Home -->)" -->