Plaintiff v. Andrew Triphon, Dmitri Triphon and Vlad Gorshteyn

P. 5 is DENIED. Defendant is to answer the First Amended Complaint within 10 days.

(1)"Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2)"Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (Civ. Code Sec. 3294(c)(1) & (2).)

who was CFO of Defendant Liberty, alleges that he was defamed by Defendants for refusing to facilitate certain acts and practices Plaintiff believed to be fraudulent and illegal. Attorney Neil Cartusciello moves for admission pro hac vice as counsel for Plaintiff Jeffrey W. Arricale.

The application of Attorney Neil Cartusciello for admission pro hac vice as counsel for Plaintiff Jeffrey W. Arricale is GRANTED. Case Number: 26STCV15673 Hearing Date: August 25, 2026 Dept: 734 Plaintiff argues that Defendants have breached an Operating Agreement regarding an LLC which purchased property. Defendants Andrew Triphon, 26 Dmitri Triphon and Vlad Gorshteyn move to compel arbitration. TENTATIVE RULING Defendants Andrew Triphon, 26 Dmitri Triphon and Vlad Gorshteyn's motion to compel arbitration is GRANTED.

Plaintiff's request for an evidentiary hearing to determine formation facts is DENIED. This action is ordered stayed pending arbitration. (Code Civ. Proc. Sec. 1281.4.) A status conference re: arbitration is set for January 22, 2026 at 8:30 a.m. Status conference briefs are due one week prior. ANALYSIS Discussion The Court has reviewed the moving, opposing and reply briefs filed by the parties, but only addresses the points which the Court deems to be material to the disposition of this motion.

Defendants Andrew Triphon, 26 Dmitri Triphon and Vlad Gorshteyn move to compel arbitration. Existence of Agreement To Arbitrate Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

(Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4 th 1094.) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.) On September 1, 2022, Plaintiff signed a document entitled COUNTERPART TO OPERATING AGREEMENT OF TT&G WARM SPRINGS, LLC, which contained the following language in pertinent part: The undersigned accepts, adopts and agrees to be bound by and comply with the terms, conditions and provisions of the Operating Agreement of TT&G Warm Springs, LLC, a California Limited Liability Company, dated July 15, 2022 (the "Agreement"), . . . (Declaration of Owen Chandler Bartlett, Exh.

C [bold emphasis added].) By virtue of the FIRST AMENDMENT TO OPERATING AGREEMENT of TT&G Warm Springs, LLC, Plaintiff was granted a 10% membership interest. (Bartlett Decl., Exh. B.) In turn the Operating Agreement is attached as Exh. A to the Bartlett Declaration. The signatories to the Operating Agreement are Dimitri Triphon, Andrew Triphon, Vlad Gorshteyn, and TT&G Warm Springs, LLC (signed by Andrew Triphon, Manager). Triphon, Triphon and Gorshteyn are named as Defendants in this action. As such, all three Defendants are signatories entitled to enforce the arbitration clause which is set forth as follows: 11.1 Arbitration of Disputes.

The parties agree that all disputes between the Members shall be submitted to binding arbitration pursuant to this Article. 11.2 Arbitration Notice. In the event of any dispute arising out of or relating to this Agreement, that the parties have not been able to resolve through good faith negotiation within 10 days after written notice from either party to the other setting forth such dispute, then either party may give written notice to the other specifying with particularity the basis for the dispute, the relief sought and that the notifying party demands arbitration of the dispute with ADR Services, Inc. of Los Angeles, California, 1900 A venue of the Stars, Los Angeles, California (the "Arbitration Notice"). 11.3 Proceeding.

The arbitration shall be governed by the California Arbitration Act, sections 1280 through 1294.2 of the Code of Civil Procedure (the "Arbitration Act"). The parties shall attempt to agree to a mutually, acceptable Arbitrator. If the parties are unable to agree to on a mutually, acceptable Arbitrator within 7 days from a demand to arbitrate, then the Arbitrator shall be selected pursuant to the ADR rules within seven days thereafter. The single Arbitrator thus selected shall proceed to hear and decide the matters at issue in such manner as set forth herein.

The parties shall initially share the arbitration fees and advance them as requested. The failure of any party to participate shall not delay or prevent the proceedings from going forward.

Any party who fails to advance his/her/its share of the arbitration fees shall be deemed a defaulting party and the Arbitrator may enter an award on a default basis. The parties agree that it is in the best interests of both parties to have any matter submitted to arbitration under the provisions of this paragraph decided as expeditiously as possible, which in no event may be more than 90 days after the date the Arbitrator is selected, unless the matter in dispute requires a shorter period or the parties agree otherwise, or there is good cause for a longer period, and the appointment of the Arbitrator shall take this into consideration.

Unless the parties otherwise agree, the arbitration hereunder shall be conducted so as to lead to a decision on the matter in dispute and the Arbitrator selected shall not act as a mediator. Judgment on the award rendered by the Arbitrator may be entered or enforced in any federal or state court, to permit enforcement of that judgment. Either party, before or during any arbitration, may apply to a court having jurisdiction for a temporary restraining order or preliminary injunction when such relief is necessary to compel arbitration as provided in this Section or protect its interests pending completion of the arbitration proceedings.

In the event of arbitration, the prevailing party shall be entitled to all of its costs, including all costs of the arbitration and reasonable attorney's fees, from the non-prevailing party. The Arbitrator shall render a reasoned award, consistent with the laws of the State of California seven (7) business days from the conclusion of the arbitration. 11.4 Notice. BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES AND REFERENCE PROVISIONS SET FORTH ABOVE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DlSPUTE LITIGATED IN A COURT OR JURY TRIAL.

BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DlSCOVERY AND APPEAL. UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISIONS, ABOVE. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THESE PROVISIONS. YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE LAWS OF THE STATE OF NEVADA, OR CALIFORNIA AS APPLICABLE AND PURSUANT TO THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" ABOVE TO NEUTRAL ARBITRATION. (Bartlett Decl., Exh.

A.) If Plaintiff signed the Counterpart without having actually requested a copy of the Operating Agreement to read, he is still deemed to have assented to the terms of the Operating Agreement. This issue usually arises when the plaintiff failed to read the terms of the contract, relying instead on the defendant's representation as to the effect of the contract. Generally, it is not reasonable to fail to read a contract; this is true even if the plaintiff relied on the defendant's assertion that it was not necessary to read the contract. (Citation omitted.)

Reasonable diligence requires a party to read a contract before signing it. (Citation omitted.) (Brown v. Wells Fargo Bank, N.A. (2008) 168 Cal.App.4th 938, 959.)

"Ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have it read or explained to him." (1 Witkin, Summary of Cal. Law (9th ed. 1987) Sec. 120, p. 145.) This is not only the California but the general rule. (3 Corbin, Contracts (1960) Sec. 607, pp. 668-669, fn. omitted ["One who signs an instrument when for some reason, such as illiteracy or blindness, he can not read it, will be bound by its terms in case the other party acts in good faith without trick or misrepresentation.

The signer should have had the instrument read to him."].) (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163.) The fact that Plaintiff did not initial the arbitration clause does not prevent enforcement against Plaintiff because, as noted above, Plaintiff signed the Counterpart by which he accepted, adopted and agreed to be bound and comply with the terms, conditions and provisions of the Operating Agreement. This includes the arbitration clause. Martinez does not dispute he signed the agreement.

He is, therefore, deemed to have assented to all its terms. (Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049 [107 Cal. Rptr. 2d 645] [Generally, "one who signs an instrument[,] which on its face is a contract[,] is deemed to assent to all its terms."].) (Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 962, 967-70.) The foregoing is bolstered by the doctrine of estoppel. Under this principle, a nonsignatory "is estopped from avoiding arbitration if it knowingly seeks the benefits of the contract containing the arbitration clause. [Citations.]" (Citations omitted.)" (Crowley Maritime Corp. v.

Boston Old Colony Ins. Co. (2008) 158 Cal. App. 4th 1061, 1070.) A fortiori a signatory should also be estopped from avoiding arbitration where that signatory--Plaintiff here--seeks to enforce the Operating Agreement which contains the arbitration clause at P. 11.1 - 11.4. Indeed, at P.P. 30 and 31 of the Complaint, Plaintiff admits [1] entering into the Operating Agreement and seeks to enforce various provisions thereof, i.e., Section 5.5, 4.2, 4.1, 7.1, 7. This differs from a situation where, say, a plaintiff seeks to recover for violations of the FEHA, which is not an action to enforce specific provisions of an employment contract which also contains an arbitration clause.

As such, Plaintiff is deemed to have agreed to arbitrate all disputes he has with the members--Defendants herein. In the Opposition, Plaintiff has not presented any other defense other than that he claims he did not agreement to the arbitration clause. That argument is not well-taken for the reasons set forth above. Plaintiff's request for an evidentiary hearing to determine formation facts is DENIED. As noted above, Plaintiff is estopped from avoiding arbitration because he seeks to enforce various provisions of the Operating Agreement against Defendants.

The motion to compel arbitration is GRANTED. This action is ordered stayed pending arbitration.

(Code Civ. Proc. Sec. 1281.4.) A status conference re: arbitration is set for January 22, 2026 at 8:30 a.m. Status conference briefs are due one week prior.

"A judicial admission is a party's unequivocal concession of the truth of a matter, and removes the matter as an issue in the case. [Citations.]" (Citation omitted.) "Judicial admissions may be made in a pleading ... . [Citations.] Facts established by pleadings as judicial admissions ' "are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted, by the party whose pleadings are used against him or her." [Citations.] " '[A] pleader cannot blow hot and cold as to the facts positively stated.' " [Citation]' [Citation.]" (Citation omitted.) (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456.) | Home -->)" -->