Judge: David S. Cunningham, Case: 23STCV23240, Date: 2024-04-02 Tentative Ruling
Case Number: 23STCV23240 Hearing Date: April 2, 2024 Dept: 11
Calderon (23STCV23240)
Tentative Ruling Re: Motion to Compel Arbitration
Date: 4/2/24
Time: 11:00
am
Moving Party: Kinetic Personnel Group, Inc.
(“Kinetic”) and OceanX, LLC (“OceanX”) (collectively “Defendants”)
Joinder: Ocean X
Opposing Party: Viet Huynh Calderon (“Plaintiff”)
Department: 11
Judge: David
S. Cunningham III
________________________________________________________________________
TENTATIVE RULING
Defendants’ request for judicial notice
is granted. The Court judicially notices
the existence of Plaintiff’s Private Attorneys General Act (“PAGA”) complaint.
The rulings on the parties’ evidentiary
objections are deferred.
The hearing on Defendants’ motion to
compel arbitration is continued. The
Court intends to hold an evidentiary hearing with live testimony regarding the
authentication and e-signature issues.
BACKGROUND
This is a putative wage-and-hour
class action.
Kinetic is a staffing
company. (See Santana Decl., ¶ 5.) OceanX is one of Kinetic’s clients. (See ibid.)
In November 2022, Kinetic hired Plaintiff, and, from December 2022
through late January 2023, Kinetic assigned him to work at OceanX. (See id. at ¶ 6.)
Here, Defendants move to compel
arbitration of Plaintiff’s individual claims.
DISCUSSION
Existence and Assent
“[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
and, if any defense to its enforcement is raised, whether it is enforceable.” (Rosenthal v. Great Western Financial
Securities Corp. (1996) 14 Cal.4th 394, 413.)
“Under ‘both federal and state law, the threshold
question . . . is whether there is an agreement to arbitrate.’” (Cruise v. Kroger Co. (2015) 233
Cal.App.4th 390, 396, emphasis in original.)
The
burden of proof rests with the petitioner.
(See Rosenthal, supra, 14 Cal.4th at 413 [requiring the
petitioner to prove the existence of the agreement “by a preponderance of the
evidence”].) To meet the burden, “the provisions of the written
agreement and the paragraph that provides for arbitration . . . must be stated
verbatim or a copy must be physically or electronically attached to the
petition and incorporated by reference.”
(Cal. Rules of Court, rule 3.1330; see also Condee v. Longwood
Management Corp. (2001) 88 Cal.App.4th 215, 218 [same].)
“Competent
evidence is required to establish both the existence of the arbitration
agreement and any ground for denial.”
(Knight, et al., Cal. Practice Guide: Alternative Dispute Resolution
(The Rutter Group December 2023 Update) ¶ 5:321.) “The verified petition (and attached copy of
the agreement) normally proves the existence of the arbitration agreement. Affidavits or declarations may be necessary
when factual issues are tendered.”
(Ibid.)
Plaintiff
started working for Kinetic on November 17, 2022. (See Santana Decl., ¶ 6.) As part of the onboarding process on that
day, Defendants claim Plaintiff e-signed Kinetic’s arbitration agreement. (See id. at ¶ 9.)
The
arbitration agreement is attached to the declaration of Kinetic’s regional vice
president, Robert Santana, at Exhibit A.
The agreement:
*
states that Kinetic and Plaintiff agree to arbitrate all claims, disputes, and
controversies they have against each other, as well as claims, disputes, and
controversies against Kinetic’s “current or former owners, directors, officers,
managers, attorneys, or other agents” (id. at Ex. A, p. 1, § 1);
*
defines covered and excluded claims (see id. at Ex. A, pp. 1, 2-3, §§ 2, 7);
*
waives the right to a jury trial (see id. at Ex. A, p. 1, § 3)
*
waives class and representative actions (see id. at Ex. A, pp. 1-2, 4-5, §§ 4,
14);
*
contains an opt-out provision (see id. at Ex. A, p. 2, § 5);
*
addresses administrative claims, notice, and mediation (see id. at Ex. A, pp.
2, 3, §§ 6, 8-9);
*
explains arbitrator selection, identifies the applicable arbitration rules and
law, states that the Federal Arbitration Act (“FAA”) governs, and discusses
attorney fees and costs (see id. at Ex. A, pp. 3-4, §§ 10-13);
*
notes that it constitutes “the complete agreement with regard to dispute
resolution” (id. at Ex. A, p. 6, § 16); and
*
emphasizes just above the signature line:
I ACKNOWLEDGE THE RECEIPT OF THE FOLLOWING ARBITRATION
AGREEMENT. I HAVE READ THIS AGREEMENT, AND I UNDERSTAND
THAT IT BINDS ME TO ARBITRATION OF DISPUTES, WAIVES MY RIGHT TO JURY TRIAL, AND
WAIVES MY RIGHT TO CLASS, COLLECTIVE, OR REPRESENTATIVE ACTIONS. THUS, I UNDERSTAND THAT, AS A RESULT OF THIS
AGREEMENT, NEITHER EMPLOYER NOR I ARE ENTITLED TO A TRIAL BY JURY OF ANY
COVERED CLAIM WHICH EITHER OF US HAVE AGAISNT THE OTHER. I FURTHER UNDERSTAND
IT IS MY SOLE RESPONSIBILITY TO READ AND UNDERSTAND THIS AGREEMENT. I ACKNOWLEDGE THAT I AM FREE TO SEEK
ASSISTANCE FROM INDEPENDENT ADVISORS OR COUNCIL OF MY CHOICE OUTSIDE THE
EMPLOYER OR TO REFRAIN FROM DOING SO.
I FURTHER ACKNOWLEDGE THAT I HAVE ENTERED INTO THIS
AGREEMENT VOLUNTARIY. FINALLY, I
UNDERSTAND THAT NO EMPLOYEE SHALL BE SUBJECT TO RETALIATION IF HE OR SHE
ASSERTS CLAIMS UNER THIS AGREEMENT.
(Id.
at Ex. A, p. 6, emphasis in original.)
Facts
and terms like these usually suffice to establish an agreement to arbitrate;
however, Plaintiff raises an assent challenge.
He contends the motion should be denied because Defendants fail to
authenticate the agreement, he does not remember reading the agreement or
signing it, and he believes he did not sign it since it is signed differently
than he normally signs documents. (See
Plaintiff Decl., ¶ 4 [stating that the agreement is signed “Viet E. Huynh
Calderon” whereas he typically signs his name “Viet Calderon” or “Viet Huynh”];
see also Opposition, pp. 4-5.)
“Authentication of a writing means (a) the introduction of
evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is or (b) the establishment of such facts
by any other means provided by law.”
(Knight, supra, at ¶ 5:321.1 [quoting Evidence Code section 1400].) “An
‘electronic signature is attributable to a person if it was the act of the
person’ and this may be shown in any manner.”
(Id. at ¶ 5:321.3.) “[A] party may establish that the electronic signature was ‘the
act of the person’ by presenting evidence that a unique login and password
known only to that person was required to affix the electronic signature, along
with evidence detailing the procedures the person had to follow to
electronically sign the document and the accompanying security precautions.”
(Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th
541, 545.)
Defendants rely on Santana to
authenticate the agreement. His
declaration appears to tender the requisite information:
7. Beginning on or
around July 2020, Kinetic implemented the TempWorks system to electronically
onboard candidates who, once hired, will be placed on one or more temporary
assignments with Kinetic’s client(s). I have knowledge of the process by which
these candidates acknowledge and accept electronic onboarding documents.
8. In my position, I
also have access to Kinetic’s electronic business records relating to the
TempWorks system, including records of when documents were electronically
acknowledged and signed by candidates in that system and copies of all signed
documents.
9. On November 17,
2022, as part of the onboarding process in connection with his employment at
Kinetic, Plaintiff Viet E. Huynh Calderon received and electronically signed
Kinetic’s Arbitration Agreement (“Agreement”). A true and correct copy of
Plaintiff’s Agreement is attached hereto as Exhibit A. The electronic signature
page for the parties is found on page 6. Additionally, the Parties initials are
found on each page of the Agreement.
10. To begin the
electronic onboarding process, Kinetic sends a link sent from TempWorks to the
candidate at the personal email address provided by the candidate. When the
candidate clicks on the link in the email they receive, a login screen appears
requiring the candidate to enter the email address they provided as their
username to the system and setup a confidential password. A candidate's
password cannot be accessed by any Kinetic manager or Kinetic employee; it is
only known by the candidate. Prior to beginning employment with Kinetic, all
candidates go through an onboarding process. The onboarding documents include
the Arbitration Agreement executed by Plaintiff as Exhibit A.
11. After logging
into the TempWorks system, the candidate is able to digitally sign documents.
When a candidate digitally signs a document, TempWorks applies the user’s
information to the signature block, including the date and time the document
was signed. Attached to Exhibit A on Page 6 is a true and accurate copy of the
signature properties for Viet E. Huynh Calderon’s e-signature.
12. After the
candidate enters their username and password to enter the TempWorks system, he
or she must read and click a button titled "Save and Continue"
through each page the Agreement, informing the candidate of his or her rights
and obligations under the Agreement, including their right to opt-out of the
Agreement within 30 days of its receipt. As the candidate proceeds through the
module, the candidate has the option to type their initials on each page of the
Agreement.
13. To enter the
TempWorks onboarding system on November 17, 2022, Plaintiff had to enter his
unique username and his confidential password. Only when these validation steps
were properly completed could Plaintiff sign the Agreement, representing that
he received, reviewed and agreed to the Agreement. On November 17, 2022,
Plaintiff signed the Arbitration Agreement attached as Exhibit A. Kinetic
electronically records this activity in the ordinary course of business.
Following Plaintiff’s execution of the Agreement, Plaintiff continued his
employment with Kinetic through January 22, 2023, under the conditions of the
Agreement.
(Santana Decl.,
¶¶ 7-13.)
Nevertheless,
the Court finds that the hearing should be continued. In reply, Santana submitted a supplemental
declaration, stating that he retrieved the e-signed agreement from Kinetic’s
secured archives. (See Supp. Santana
Decl., ¶¶ 2-3.) Additionally, he
attaches other documents that bear the “Viet E. Huynh Calderon”
e-signature. (See id. at Exs. B-E.) He claims the documents were e-signed by
Plaintiff during the onboarding process.
(See id. at ¶¶ 4-8.) The Court
believes Plaintiff should receive an opportunity to respond to the supplemental
declaration via testimony from Plaintiff and cross-examination of Santana. An evidentiary hearing with live testimony is
the most fruitful, efficient way to resolve the authentication and e-signature
issues.
The
Court rejects Plaintiff’s second point.
Lack of memory is not a defense.
Nor is failure to read. (See,
e.g., Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 687 [“[T]he fact
that [the plaintiff] signed a contract in a language he may not have completely
understood would not bar enforcement of the arbitration agreement. If [the plaintiff] did not speak or understand
English sufficiently to comprehend the English Contract, he should have had it
read or explained to him.”].) This is especially true here for two reasons. One, Plaintiff does not claim he could not
understand English. Two, the agreement
provides a one-month opt-out period and permits
employees to seek assistance from outside attorneys to read and understand the
agreement. (See Santana Decl., Ex. A, p.
2, § 5, p. 6.)
Enforcement
Assuming
arguendo that an agreement to arbitrate exists, Plaintiff claims the agreement
is unconscionable.
“[U]nconscionability has
both a procedural and a substantive element, the former focusing on oppression
or surprise due to unequal bargaining power, the latter on overly harsh or
one-sided results.” (Armendariz v.
Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114,
internal quotation marks omitted.) “The
prevailing view is that [procedural and substantive unconscionability] must
both be present in order for a court to exercise its discretion to refuse to
enforce a contract or clause under the doctrine of unconscionability.” (Ibid.)
“But they need not be present in the same degree.” (Ibid.)
“Essentially a sliding scale is invoked which disregards the regularity
of the procedural process of the contract formation, that creates the terms, in
proportion to the greater harshness or unreasonableness of the substantive
terms themselves.” (Ibid.) “In other words, the more substantively
oppressive the contract term, the less evidence of procedural unconscionability
is required to come to the conclusion that the term is unenforceable, and vice
versa.” (Ibid.)
Procedural
Unconscionability
For procedural
unconscionability, Plaintiff contends the agreement is a contract of adhesion,
Defendants presented it with other employment documents, no one explained the
contents or legal significance of the documents to him, he did not get
compensated for the time he spent reviewing the documents, he did not receive
copies, the agreement is in 9.5 font, and it contains lengthy sentences and
legal jargon. Plaintiff cites Hasty
v. American Automobile Association of Norther California, Nevada & Utah
(2023) 98 Cal.App.5th 1041 and OTO, LLC v. Kho (2019) 8 Cal.5th
111 in support. (See Opposition, pp.
5-7.)
The Court disagrees. Hasty and OTO are
distinguishable. To reiterate, Kinetic’s
agreement provides employees 30 days to opt out and allows them to use outside
attorneys to help them read and understand the agreement. (See Santana Decl., Ex. A, p. 2, § 5, p.
6.) These facts establish that the
agreement is not procedurally unconscionable.
While
the font is smaller than 12 point, it is big enough to be legible. The most important sections – e.g., the class
and representative waivers and the opt-out section – are spaced separately from
each other, capitalized in full, and have underlined titles. (See id. at Ex. A, pp .1-2, §§ 4-5.) Also, the acknowledgment just above the
signature line is capitalized and bolded.
(See id. at Ex. A, p. 6.) Considering
these facts, the font size is inadequate to show procedural unconscionability.
Substantive
Unconscionability
For substantive
unconscionability, Plaintiff asserts that the class, representative, and
administrative-relief waivers are one-sided, the agreement unlawfully requires
arbitration of claims for sexual harassment, the provisional-relief section is
one-sided, and the fee-shifting section is illegal. (See Opposition, pp. 7-10.)
Given that Plaintiff
fails to show procedural unconscionability, the Court does not need to analyze
substantive unconscionability. As
guidance, though, the Court offers the following thoughts.
Class Waiver
The agreement expressly
states that the FAA governs. The class
waiver is enforceable since the FAA preempts California law as to class
waivers. (See, e.g., Iskanian v. CLS
Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 359-360
[finding that the FAA preempts “a state’s refusal to enforce [] a [class]
waiver on grounds of public policy or unconscionability”].)
Representative
Waiver
Prior
to Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 (“Viking
River”), the applicable law was Iskanian. “Iskanian’s principal rule prohibits
waivers of ‘representative’ PAGA claims in the first sense.” (Viking River, supra, 142 S.Ct. at
1916, underlined case name added.) “That
is, it prevents parties from waiving representative standing to bring
PAGA claims in a judicial or arbitral forum.”
(Ibid., emphasis in original.)
“But Iskanian also adopted a secondary rule that invalidates
agreements to separately arbitrate or litigate ‘individual PAGA claims for
Labor Code violations that an employee suffered,’ on the theory that resolving
victim-specific claims in separate arbitrations does not serve the deterrent
purpose of PAGA.” (Id. at 1916-1917,
underlined case name added; see also, e.g., Knight, supra, at ¶ 5:49.4m [citing
California case law for the proposition that a “single count under PAGA could
not be ‘split into an arbitrable individual claim and a nonarbitrable
representative claim”].)
In
Viking River, the plaintiff “executed an agreement to arbitrate any
dispute arising out of her employment.”
(Viking River, supra, 142 S.Ct. at 1916.) “The agreement contained a ‘Class Action Waiver’ providing that in any
arbitral proceeding, the parties could not bring any dispute as a class,
collective, or representative PAGA action.”
(Ibid.) “It also contained a
severability clause specifying that if the waiver was found invalid, any class,
collective, representative, or PAGA action would presumptively be litigated in
court.” (Ibid.) “But under that severability clause, if any
‘portion’ of the waiver remained valid, it would be ‘enforced in arbitration.’” (Ibid.)
“After
leaving her position” with the defendant, the plaintiff “filed a PAGA action .
. . in California court.” (Ibid.) “Her complaint contained a claim that [the
defendant] had failed to provide her with her final wages within 72 hours, as
required by” Labor Code sections 101 and 102.
(Ibid.) “But the complaint also
asserted a wide array of other code violations allegedly sustained by other . .
. employees, including violations of provisions concerning the minimum wage,
overtime, meal periods, rest periods, timing of pay, and pay statements.” (Ibid.)
The defendant “moved to compel arbitration of [the plaintiff’s]
‘individual’ PAGA claim” – i.e., “the claim that arose from the violation she
suffered — and to dismiss her other PAGA claims.” (Ibid.)
“The trial court denied that motion, and the California Court of Appeal
affirmed, holding that categorical waivers of PAGA standing are contrary to
state policy and that PAGA claims cannot be split into arbitrable individual
claims and nonarbitrable ‘representative’ claims.” (Ibid.)
The
Court of Appeal’s ruling “was dictated by . . . Iskanian.” (Ibid., underlined case name added.) “Iskanian’s principal prohibition
required the lower courts to treat the representative-action waiver” in Viking
River “as invalid insofar as it was construed as a wholesale waiver of PAGA
standing.” (Id. at 1917, underlined case
name added.) “The agreement's
severability clause, however, allowed enforcement of any ‘portion’ of the
waiver that remained valid, so the agreement still would have permitted arbitration
of [the plaintiff’s] individual PAGA claim even if wholesale enforcement was
impossible.” (Ibid.) “But because” Iskanian “prohibits
division of a PAGA action into constituent claims, the state courts refused to
compel arbitration[.]” (Ibid.)
The
United States Supreme Court granted review and reversed, holding, eight to one,
that the FAA preempts Iskanian “insofar as it precludes division of PAGA actions into individual and
non-individual claims through an agreement to arbitrate.” (Id. at 1924.) The opinion instructs:
This holding compels reversal in this
case. The agreement between [the
defendant] and [the plaintiff] purported to waive “representative” PAGA claims.
Under Iskanian, this provision
was invalid if construed as a wholesale waiver of PAGA claims. And under our holding, that
aspect of Iskanian is not preempted by the FAA, so the
agreement remains invalid insofar as it is interpreted in that manner. But the severability clause in the agreement
provides that if the waiver provision is invalid in some respect, any “portion”
of the waiver that remains valid must still be “enforced in arbitration.” Based on this clause, [the defendant] was
entitled to enforce the agreement insofar as it mandated arbitration of [the
plaintiff’s] individual PAGA claim. The
lower courts refused to do so based on the rule that PAGA actions cannot be
divided into individual and non-individual claims. Under our holding,
that rule is preempted, so [the defendant] is entitled to compel arbitration of
[the plaintiff’s] individual claim.
(Id. at 1924-1925, underlined case names added.)
The opinion continues:
The remaining question is what the lower
courts should have done with [the plaintiff’s] non-individual claims. Under our holding in this case, those claims
may not be dismissed simply because they are “representative.” Iskanian’s
rule remains valid to that extent. But
as we see it, PAGA provides no mechanism to enable a court to adjudicate
non-individual PAGA claims once an individual claim has been committed to a
separate proceeding. Under PAGA's
standing requirement, a plaintiff can maintain non-individual PAGA claims in an
action only by virtue of also maintaining an individual claim in that
action. [Citation.] When an employee's own dispute is pared away
from a PAGA action, the employee is no different from a member of the general
public, and PAGA does not allow such persons to maintain suit. [Citation.]
As a result, [the plaintiff] lacks statutory standing to continue to
maintain her non-individual claims in court, and the correct course is to
dismiss[.]
(Id. at 1925, underlined case
name added.)
Four takeaways stand out:
* Iskanian’s prohibition
against waiving representative PAGA claims stands;
* Iskanian is preempted to
the extent it bars dividing PAGA claims into individual and representative
claims;
* the defendant is allowed to
compel the plaintiff’s individual PAGA claim to arbitration; and
* once the plaintiff’s individual
PAGA claim is compelled to arbitration, he or she lacks standing to maintain
the representative PAGA claim.
The High Court’s standing ruling
is nonbinding. The California Supreme
Court reversed it in a case called Adolph v. Uber Technologies, Inc.
(2023) 14 Cal.5th 1104.
In light of Iskanian, Viking
River, and Adolph, if an agreement to arbitrate ends up being found
to exist, the Court intends to compel Plaintiff’s individual PAGA claim to
arbitration and to stay the representative PAGA claim until the arbitration is
finished.
Administrative-Relief Waiver
The
Court disagrees with Plaintiff. The
agreement states, plainly, that “claims may be brought before, and remedies
awarded by an administrative agency where applicable law ensures access to such
an agency” and that “[n]othing in this Agreement shall be deemed to preclude or
excuse a party from bringing an administrative claim in arbitration.” (Santana Decl., Ex. A, p. 2, § 6.) These terms are mutual; they are not
unconscionable.
Sexual Harassment
Plaintiff’s argument is
persuasive. Section 402 of the FAA “bars
arbitration of claims alleging sexual assault or harassment[.]” (Knight, supra, at ¶ 5:76.31.) Kinetic’s agreement seems to include claims
for sexual harassment within the definition of covered claims. (See Santana Decl., Ex. A, p. 1, § 2.) Although Plaintiff does not allege sexual
harassment in the complaint, the Court, in an abundance of caution, is inclined
to sever the agreement’s reference to sexual harassment.
Provisional
Relief
Plaintiff’s argument
fails. The agreement states:
“Furthermore, the Agreement shall not prevent either the Employee or the
Employer from obtaining provisional remedies to the extent permitted by law
either before the commencement of or during the arbitration process.” (Santana Decl., Ex. A, p. 2, § 6; see also
id. at Ex. A, p. 3, § 7 [providing that “[a] Party may apply to a court of
competent jurisdiction for temporary or preliminary injunctive relief in
connection with an arbitrable controversy, but only upon the ground that the
award to which that party may be entitled may be rendered ineffectual without
such provisional relief”].) Both sides
can seek injunctive relief for claims they prefer. The terms are clearly mutual. Plaintiff’s assertion otherwise is overbroad
and speculative.
Fees and
Costs
Plaintiff’s argument is
unavailing. Section 13 of the agreement
provides:
The
prevailing part[y] in any arbitration shall be entitled to recover his/her/its
reasonable attorney’s fees and costs but only to the extent authorized by valid
contract or statute. Employee shall not
be required to pay any fee or expense if such requirement would invalidate this
Agreement or would otherwise be contrary to the law as it exists at the time of
the arbitration, as determined by the arbitrator.
(Id. at Ex. A, p. 4, §
13.) The plain language mandates that
any award of fees must comply with the law, which necessarily includes Armendariz,
supra, 24 Cal.4th 83. The section is
legal in that the arbitrator is limited to awarding a legal fees award.
Summary
Plaintiff
fails to show procedural and substantive unconscionability; thus, in the event
an agreement to arbitrate is eventually found to exist, the Court intends to
find the agreement enforceable.
The
exception is that the Court, as a matter of caution, is inclined to sever the
agreement’s coverage of claims for sexual harassment.
OceanX
Plaintiff claims OceanX
cannot compel arbitration because it is a nonsignatory. (See Opposition, pp. 1, 12-13.)
“Certain persons who did not sign the agreement
to arbitrate may be entitled to enforce it and prosecute the arbitration in
their own names.” (Knight, supra, at ¶
5:262.) For example, third-party
beneficiaries (see id. at ¶ 5:263), employees (see id. at ¶ 5:265.7),
associates (see ibid.), agents (see id. at ¶ 5:266.5), and assigns. (See id.at ¶ 5:266.7.) Another example is when equitable estoppel
applies. (See id. at ¶ 5:266.15.) “[A] a nonsignatory defendant may invoke an arbitration clause to compel a
signatory plaintiff to arbitrate its claims when the causes of action against
the nonsignatory are ‘intimately founded in and intertwined’ with the
underlying contract obligations.” (Marenco
v. DirecTV LLC (2015) 233 Cal.App.4th 1409, 1419-1420.)
If,
post-continuance, an arbitration agreement is found to exist, the Court intends
to grant the motion. The complaint
alleges that Kinetic and Ocean X jointly employed Plaintiff and that they are
agents, principals, employers, representatives, alter egos, joint venturers,
and co-conspirators of each other. (See Complaint,
¶¶ 6-10.) The agreement states that it
applies to Plaintiff’s claims against Kinetic’s owners and agents. (See Santana Decl., Ex. A, p. 1, § 1.) OceanX seemingly qualifies as a third-party
beneficiary, and, regardless, equitable estoppel is satisfied. Indeed, the claims against OceanX are
“intimately founded in and intertwined” with the claims against Kinetic. (Marenco, supra, 233 Cal.App.4th
at 1419-1420.) They “are based on the
same facts and are inherently inseparable[.]”
(Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 786.)