Superior Court of California

County of Los Angeles

BRANDON BLAKE;

Plaintiff,

vs.

COLENSO EVELYN;

Defendant.

Case No.: 23STCV31343

DEPARTMENT 45

[TENTATIVE] ORDER

Action Filed: 12/22/23

Trial Date: Not Set

Hearing date: June 25, 2024

Moving Parties: Defendant and Cross-Complainant Colenso Evelyn

Responding Parties: Plaintiff and Cross-Defendant Brandon Blake

Motion to Compel Arbitration

The court has considered the moving and opposition papers.

The court DENIES Defendant’s motion to compel arbitration.

Background

On December 22, 2023, Plaintiff Brandon Blake (“Blake”) filed a Complaint against Defendant Colenso Evelyn (“Evelyn”) for 1) Libel; 2) Unlawful Business Practices violating Business and Professions Code § 17200; and 3) Intentional Infliction of Emotional Distress.

Evelyn filed an Answer to the Complaint on April 17, 2024.

On March 13, 2024, Evelyn filed a Cross-Complaint against Blake, Blake & Wang P.A. (“B&W”), and Saturn Harvest, LLC (“Saturn”) for 1) Breach of Contract; 2) Contract Fraud; 3) Actual Fraud; 4) Disability Abuse; 5) Recoverin Defrauded Monies; and 6) Dissolution of Contracts.

On May 17, 2024, Evelyn filed the instant motion to compel arbitration.

On June 11, 2024, the Court continued the hearing for Evelyn’s motion to provide Blake an opportunity to file an opposition. That same day, Blake filed his opposition to the motion.

Legal Standard

Under CCP § 1281, a “written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and revocable, save upon such grounds as exist for the revocation of any contract.” A party to an arbitration agreement may seek a court order compelling the parties to arbitrate a dispute covered by the agreement. (CCP § 1281.2.) The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Marcus & Millichap Real Estate Inv. Brokerage Co. v. Hock Inv. Co. (1998) 68 Cal. App.4th 83, 88.)

When presented with a petition to compel arbitration, the trial court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute. (Id. at 88.) “[A]bsent a clear agreement to submit disputes to arbitration, courts will not infer that the right to a jury trial has been waived.” (Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563, 569, internal citations and quotations omitted.)

Because the right to arbitration depends upon contract, the party seeking arbitration bears the initial burden of proving that the parties actually agreed to arbitrate the instant dispute. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.) If the moving party does so, the burden shifts to the opposing party to show that the subject agreement is unenforceable. (Id. at 761.) The court “sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 972.)

Discussion

Evelyn moves for an order to “shift [this case] over to a previously and mutually agreed upon Arbitration process that was initiated by” Blake, which bears case number 01 23 0004 3513.

1. Existence of an Arbitration Agreement

In moving for an order compelling arbitration, Evelyn submits a “Memorandum of Agreement” which was appended as Exhibit 10 of another, unspecified, contract. The Memorandum memorializes an agreement between Evelyn and cross-defendant Saturn to produce, sell and distribute a series entitled “L&D” (the “Series”). Saturn is described as the executive producer, Evelyn as the owner. Paragraph 10 of the Memorandum contains an arbitration clause, which states:

10. ARBITRATION: In the event of a dispute between the parties hereto, the parties agree to submit such dispute to binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association, before a single arbitrator with knowledge of the entertainment industry, in the City of Los Angeles, California. The arbitrator must be mutually approved by the parties in writing. The aggrieved party shall file a notice to arbitrate with the American Arbitration Association, whose rules and procedures shall govern such arbitration. The language of the arbitration shall be English. The award of the arbitrator may be entered in any court of competent jurisdiction for enforcement. All costs of the arbitration, including reasonable outside attorneys fees and other out-of pocket expenses of the parties, whether or not such expenses might be deemed recoverable costs of litigation under the California Rules of Court, shall be awarded and apportioned by the arbitrator to the party or parties that prevail in the arbitration. The arbitrators will have no authority to award punitive, consequential or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount.

(Motion, Exh., p. 2.) Immediately below the arbitration clause are Blake’s signature, on behalf of Saturn, as its manager, and Evelyn’s signature, in his personal capacity.

Blake argues that Evelyn did not meet his initial burden of proving the existence of an agreement to arbitrate because Blake is not, in his individual capacity, a party to the Memorandum, and Blake initiated this lawsuit in his individual capacity, not on behalf of cross-defendants Saturn (or B&W).

2. Opposition arguments

Blake also opposes the motion on two additional grounds. First, Blake argues that even if the Court were to find based on the Memorandum that a binding agreement to arbitrate exists, the tort claims that make up his Complaint would be beyond the scope of that agreement because the agreement only covers disputes arising out of the parties’ collaboration on the Series. As a reminder, Blake’s complaint asserts two tort claims, libel and intentional infliction of emotional distress, and one statutory claim under Business and Professions Code § 17200.

Second, Blake argues that the Court should use its discretion to deny the motion based on CCP § 1281.2(c). This section provides that a court may decline to order the parties to arbitrate, even if an agreement to arbitrate exists, if “[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (CCP § 1281.2(c).) Blake contends that Evelyn, who is a party to the alleged arbitration agreement, is also a party to a pending court action with third parties, cross-defendants Saturn and B&W. If only Blake’s Complaint, but not Evelyn’s Cross-Complaint, is arbitrated, there is a possibility of conflicting rulings on common issues with respect to the factual nexus giving rise to Blake’s tort claims, which Blake contends substantially overlap with Evelyn’s cross-claims.

The Court finds Evelyn has not met his burden of showing the existence of an arbitration agreement that is binding on Blake in his individual capacity.

The court therefore DENIES Evelyn’s motion to compel arbitration.

It is so ordered.

Dated: June 25, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court