Case Number: KC066596    Hearing Date: July 15, 2014    Dept: J

Re: IQ Marketing 2, Corp. etc., et al. v. Fleur De Lis Film Studios, LLC, etc., et al. (KC066596)

MOTION TO DISMISS COMPLAINT, DISMISS DEFENDANTS, QUASH SERVICE OF PROCESS, AND COMPEL ARBITRATION

Moving Party: Defendant BJ Davis

Respondents: Plaintiffs IQ Marketing 2, Corp. and Michael M. Asghari

POS: Moving OK; Opposing filed and served by regular mail just 7 court days prior to the hearing contrary to CCP §§ 1005(b) and (c)

Plaintiffs’ First Amended Complaint in this action, filed on 1/27/14, asserts causes of action for:

1. Fraud – Intentional Misrepresentation
2. Negligent Misrepresentation
3. Breach of Contract
4. Conversion
5. Defamation

On 5/7/14, defaults were entered against Defendants John D. Schofield and Fleur De Lis Film Studios, LLC.

The Final Status Conference is set for 11/24/14. The Trial is set for 12/2/14.

Defendant BJ Davis (“Defendant”) moves to quash the service of process upon and to dismiss Defendants John D. Schofield and Fleur De Lis Film Studios, LLC on the grounds that they were not served with the Complaint.

Defendant also moves to compel arbitration on the grounds that parties to this litigation have entered into a contractual agreement providing for mandatory arbitration.

Defendant also moves the court for an order dismissing the Complaint on the grounds that the Complaint fails to state a claim upon which relief can be granted.

MOTION TO QUASH:

As previously noted by the Court at the April 29, 2014 hearing, unless Defendant BJ Davis is an attorney, he cannot appear on behalf of Defendants John D. Schofield and Fleur De Lis Film Studios, LLC. (Bus & Prof C §6125 – “[n]o person shall practice law in California unless the person is an active member of the State Bar.”)

Defendant BJ Davis cannot appear on behalf of Defendants John D. Schofield and Fleur De Lis Film Studios and move to quash service and dismiss. Defendant BJ Davis is once again practicing law without a license. Thus, the motion to dismiss and quash service of process is denied, and Defendant Davis is ordered not to file any additional documents in this action purporting to be on behalf John D. Schofield and/or Fleur De Lis Film Studios, LLC.

MOTION TO COMPEL ARBITRATION:

Defendant’s petition to compel arbitration was previously heard and denied on April 29, 2014. Thus, this motion constitutes a motion for reconsideration.

Within 10 days after service upon the party of written notice of entry of the order and based upon “new or different facts, circumstances, or law,” any party may make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. (CCP § 1008.)

In Defendant’s prior motion to compel arbitration, Defendant submitted new evidence in the reply, including what purports to be an October 8, 2012 agreement between the parties that contains an arbitration provision. The court found that it was improper to submit additional evidence with the reply that could have been included in the original motion, as it precludes the Plaintiffs from having an opportunity to address the new matter. (See April 29, 2014 Order.)

The instant motion was filed and served on May 9, 2014, 10 days after the April 29, 2014 Order was entered. Thus, the motion is timely. The motion is also based on new or different facts, i.e., October 8, 2012 agreement between the parties that was not considered at the first hearing.

A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. (CCP § 1281.) Accordingly, on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 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, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement; (c) 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; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.)

The petition to compel arbitration is a suit in equity for specific performance. (Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co. (1998) 68 Cal.App.4th 83, 88.) Nonetheless, CCP §§ 1281.2 and 1290.2 create a summary proceeding for resolving petitions to compel arbitration. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) The petition to compel arbitration, consequently, functions as a motion and is to be heard in the manner of a motion, i.e., the facts are to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court’s discretion. (CCP § 1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414.)

Defendant submits a copy of an agreement between the parties containing an arbitration clause. (Motion, Exh. A, Deal Memo dated October 8, 2012.)

Plaintiffs, in opposition, submit the declaration of Bob Dziadkowiec, the Chief Operations Officer of Fleur De Lis Film Studios, LLC and one of the signatories of the October 8, 2012 agreement, who contends that Defendant has submitted a “phony October 8, 2012 deal memo.” (Opposition, Dziadkowiec Decl.) Specifically, Mr. Dziadkowiec attests that he has never seen this document before and that he definitely did not sign it; his signature is definitely a forgery; and that the only document he ever signed pertaining to Plaintiff Mike Asghari was dated November 5, 2012, and was for his total investment of $50,000 in the film September Morn. (Ibid.)

Further, Plaintiff Mike Asghari, in his April 15, 2014 declaration filed in support of his opposition to Defendant’s first petition to compel arbitration, attests that the contract he signed with Fleur De Lis Film Studios, LLC did not contain an arbitration provision and that he has never signed any documents that contained such a provision. (See Asghari Decl. filed on April 16, 2014.)

Based on the evidence submitted, the court finds that there was no agreement by the parties to arbitrate this matter. Thus, the motion to compel arbitration is denied.

MOTION TO DISMISS BASED ON FAILURE TO STATE A CLAIM:

Defendant also moves to dismiss the Complaint pursuant to CCP § 430.10 on the grounds that the Complaint fails to state a claim. It appears that Defendant is attempting to file a demurrer to the First Amended Complaint. However, on April 29, 2014, Defendant’s demurrer to the First Amended Complaint was overruled and Defendant was ordered to serve and file his answer within 10 days. Moreover, even if the Court considers the motion as a motion for reconsideration, it still fails since it is not based upon “new or different facts, circumstances, or law.” Thus, the motion to dismiss is denied.