Lomakin vs. Cadaval

The court finds that the quiet title claim is also “on a contract,” as it is based on the RPA. (Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174, 1178–1179 [“Whether an action is based on contract or tort depends upon the nature of the right sued upon, not the form of the pleading or relief demanded ... [i]f based on breach of promise it is contractual; if based on breach of a noncontractual duty it is tortious”]; accord, Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 347 [“In determining whether an action is ‘on the contract’ under section 1717, the proper focus is not on the nature of the remedy, but on the basis of the cause of action”]; Boyd v.

Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 377 [in determining whether action is contractual, “the court should consider the pleaded theories of recovery, the theories asserted and the evidence produced at trial, if any, and also any additional evidence submitted on the motion in order to identify the legal basis of the prevailing party's recovery”].)

The allegations of plaintiffs’ Complaint show that all three claims, including the quiet title claim, were based on the RPA. (Id. at 377 [“the court should consider the pleaded theories of recovery”]; Complaint, ¶ 8, Ex. 1 [RPA]; see also ¶¶ 14-16, 25, 37 [alleging defendants’ breach], 42 [incorporating prior allegations based on RPA in quiet title claim], 43 [seeking to quiet title against claims “in the Subject Property arising from the sale transaction”], 45 [seeking to quiet title “as of the date of the breach of Purchase Contract or November 30, 2023; or alternatively, the date of the filing of this complaint”].)

Moving parties have not provided any evidence to the contrary; their supporting declaration and exhibits are silent on this point, while plaintiffs do provide evidence that the quiet title action is contractual in nature. (Luu Decl., ¶¶ 5 and 6 [“Plaintiffs’ quiet title claim was based on Plaintiffs’ alleged contractual and equitable rights arising from the Residential Purchase Agreement and the parties’ dispute regarding performance and closing of escrow ... Plaintiffs did not

allege any independent tort claim in this action, including fraud, negligent misrepresentation, concealment, trespass, nuisance, or other non-contract tort claim”]; Boyd v. Oscar Fisher Co., supra at 377 [court may consider “evidence submitted on the motion”].)

Further, although not discussed by the parties, moving parties provide no evidence that they complied with the mediation condition precedent, or that this condition was excused. (Thomas Decl., Ex. 1, ¶¶ 22 [prevailing party entitled to attorney fees “except as provided in paragraph 30A”], 30A [“If, for any dispute or claim to which this paragraph applies, any Party (i) commenced an action without first attempting to resolve the matter through mediation, or (ii), before commencement of any action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees”]; Lange v.

Schilling (2008) 163 Cal.App.4th 1412, 1417 [failure to comply with mediation condition precedent in a standard residential purchase agreement precludes attorney fee recovery]; Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 1101, [“[s]eeking mediation is a condition precedent to the recovery of attorney fees”].)

Finally, moving parties’ judicial estoppel argument was not raised until the Reply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537- 1538 [ordinarily, new evidence or arguments presented for the first time in the Reply are not considered, unless the opposing party has notice and an opportunity to respond].) Even if considered, it is not persuasive; plaintiffs’ prior ex parte application to consolidate (ROA 18) did not argue that their quiet title claim was not contractual in nature. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987 [judicial estoppel elements, including prior “totally inconsistent” position]; ROA 18 at 7:27-8:2 [“Plaintiffs contend they have ownership and possessory rights to the Subject Property pursuant to the written purchase sale agreement between Plaintiffs and Defendants”].)

Moving parties’ request for judicial notice is DENIED. (Cal. Rules of Court, Rule 3.1113, subd. (l) [request must be made in separate document]; Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889 [while judicial notice may be taken of the existence of government websites, “the same is not true of their factual content ... we know of no ‘official Web site’ provision for judicial notice in California”]; Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519 [“although it might be appropriate to take judicial notice of the existence of the websites, the same is not true of their factual content;” Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295 [the court is not required to take judicial notice of irrelevant documents].)

Plaintiffs Timothy David Lomakin and Alissa Claire Lomakin shall give notice.

2. Afzal vs. Genesis Motor America, LLC

25-01519236

1. Motion to Compel Arbitration 2. Case Management Conference

Defendant Genesis Motor America, LLC’s motion to compel arbitration is DENIED.

Defendant seeks an order compelling plaintiff Uzma Afzal to arbitrate his claims pursuant to (1) an arbitration agreement contained in the Genesis “2023 Owner’s Handbook and Warranty Information” booklet (owner’s handbook), and (2) an arbitration provision contained in a Hyundai Bluelink/Genesis Connected Services Agreement (CSA).

Owner’s handbook, mutual assent. To the extent defendant relies on the arbitration agreement in the owner’s handbook, defendant has failed to meet its burden to demonstrate the existence of this agreement. (See Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 345-346 [FAA applies pursuant to the terms of arbitration agreement]; Johnson v. Walmart Inc. (9th Cir. 2023) 57 F.4th 677, 680-681 (Johnson) [burden]; see also Villa Decl at Ex. 2 [handbook excerpts].)

Defendant has failed to demonstrate plaintiff’s mutual assent to the arbitration agreement in the owner’s handbook. (See Berman v. Freedom Financial Network, LLC (9th Cir. 2022) 30 F.4th 849, 855 [under FAA, state law governs contract formation]; Civ. Code, § 1550 [contract elements]; see also Johnson, supra, 57 F.4th at pp. 680-681 [arbitration is strictly a matter of consent; “ ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ”]; accord, Coinbase, Inc. v. Suski (2024) 602 U.S. 143, 148.)

To form a contract under California law, there must be mutual assent. (Herzog v. Superior Court (2024) 101 Cal.App.5th 1280, 1293-1294 (Herzog); Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 862 (Long).) “ ‘ “[M]utual manifestation of assent, whether by written or spoken word or by conduct, is the touchstone of contract.” ’ [Citation.]” (Long, at p. 862.) “ ‘Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. The