Opinion
A157963
06-25-2020
PRICE SIMMS PA, LLC, Plaintiff and Respondent, v. EMOTIVE EXPERIENTIAL PERFORMANCE, INC. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV-263659)
Plaintiff Price Simms PA, LLC dba McLaren San Francisco (MSF) and Defendants Emotive Experiential Performance, Inc. and Jonathan Haswell (collectively, Emotive) entered into a joint venture whereby MSF supplied vehicles to Emotive for use by members of Emotive's private driving club. MSF later sued Emotive, alleging Emotive had failed to pay MSF its net profit share according to the terms of their joint venture agreement. Emotive filed a petition to compel arbitration of the dispute based on the arbitration clause in a membership agreement signed by MSF to become a corporate member of Emotive's driving club. The trial court denied the petition. Emotive appeals. We affirm.
I. BACKGROUND
MSF is an authorized retail seller and servicer of McLaren automobiles. Emotive owns and operates a performance driving center, which includes a racing school and a private driving club known as the Turn 1 Club (T1 Club).
A. T1 Club Agreement
MSF signed a Simraceway T1 Club Corporate Membership Agreement (T1 Club Agreement) to become a corporate member of Emotive's driving club. The T1 Club Agreement provided MSF with various corporate member benefits for an annual fee of $37,500. Those benefits included storage of a McLaren vehicle at the driving center, driving sessions with an Emotive instructor, time on the racetrack, and concierge services to prepare the vehicle for use and later return to storage.
Paragraph 36 of the T1 Club Agreement provides: "In the event of any dispute concerning the validity, interpretation, enforcement or breach of this Contract, the dispute shall be resolved by arbitration. . . . Any arbitration shall be in accordance with the then existing streamlined rules of JAMS." Paragraph 34 states: "The terms of this Contract contain the entire agreement of the parties as to the matters covered hereby, and no other representations, warranties, or promises have been made or relied upon by either of the parties hereto."
The T1 Club Agreement was signed by the general manager for MSF, but the signature line for Emotive is blank. The signatures are not dated. There is a handwritten note of unknown origin in the margin of the first page that reads: "Signed 21st Sep 2016."
B. JV Agreement
MSF also signed a Joint Venture Agreement (JV Agreement) with Emotive. The JV Agreement states that the joint venture was formed to provide T1 Club members with access to a fleet of McLaren vehicles supplied by MSF, to establish a new tier of the T1 Club focused on road cars, and to use the McLaren vehicles for Emotive's driving programs. It also states that the net profits from the joint venture would be split equally between Emotive and MSF.
Paragraph 14 of the JV Agreement provides: "Any matter involving interpretation or enforcement of this Agreement shall be brought in the state or federal courts in Sonoma County. The parties hereby accept the jurisdiction of those courts." Paragraph 19 states: "This Agreement constitutes the entire agreement between First Party and Second Party, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement."
The JV Agreement states that the agreement was "made as of January 12th, 2016," but the signatures by MSF and Emotive are dated in February 2017.
C. Complaint
In 2018, MSF sent Emotive a notice of termination of the JV Agreement. MSF then filed suit against Emotive, asserting causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, money had and received, action for an accounting, conversion, fraudulent concealment, fraud and deceit, and violation of California's Unfair Competition Law. (Bus. & Prof. Code § 17200.) MSF alleged that Emotive breached the JV Agreement by failing to pay all amounts owed to MSF and failing to maintain complete and accurate accounting of the use of vehicles MSF supplied for the joint venture. MSF alleged that Emotive would provide one vehicle to multiple users in a given day and accrue income from each user, but only account and pay MSF for a single use.
D. Demurrer
Emotive first filed a demurrer to the complaint. Among other things, Emotive argued that the complaint did not allege facts sufficient to state a cause of action because the JV Agreement was "subordinate to, and part and parcel of" the T1 Club Agreement, but the T1 Club Agreement was not attached to the complaint.
The parties were ordered to participate in the Demurrer Facilitator Program. The facilitator described Emotive's demurrer as "ill founded in part and well founded in part." On Emotive's argument as to subordination, the facilitator found "nothing in the corporate membership agreement or the joint venture agreement" supported such an interpretation. The facilitator stated that the one reference to the T1 Club Agreement in the JV Agreement—that the initial term of the JV Agreement expires two years from the date of the T1 Club Agreement—"meaningless" because the T1 Club Agreement is not dated.
The facilitator concluded that there was "[n]o reasonable interpretation of either agreement" to support Emotive's position that the agreements "should be read together as a single agreement or that the provisions of one agreement should govern the other" because the agreements each contained its own integration clause and reflected independent subject matters.
E. Petition To Compel Arbitration
In 2019, Emotive sent MSF a notice of default and demand for payment. The letter stated that MSF had failed to pay the two monthly T1 Club membership fees after providing its 60-day termination notice of the JV Agreement. Emotive demanded remittance of the $6,438 amount. MSF responded that it would pay nothing further on the T1 Club Agreement.
Emotive submitted a demand for arbitration to JAMS, alleging that MSF breached the T1 Club Agreement by filing a lawsuit and refusing to pay the amounts due under the agreement.
Emotive then withdrew its demurrer to MSF's complaint and filed a petition to compel arbitration and stay litigation pending arbitration. Emotive based its petition to compel arbitration on the arbitration clause in the T1 Club Agreement. Emotive argued that the petition should be granted so that the arbitrator could determine the scope of the arbitration clause, since the terms of the T1 Club Agreement vested the arbitrator (and not the court) with that authority. Emotive also argued, in the alternative, that the petition should be granted because the arbitration clause in the T1 Club Agreement covers the dispute.
MSF did not file a timely opposition brief to the petition. According to MSF, it had instructed a vendor to file an opposition brief with four supporting declarations, but the vendor filed only one of the declarations. MSF made an ex parte application to continue the hearing to allow for consideration of its full opposition papers, which was denied.
The trial court issued a tentative ruling denying the petition. Both parties made oral arguments at the hearing.
F. Order Denying Petition To Compel Arbitration
The trial court denied the petition to compel arbitration. It described Emotive's argument that the T1 Club Agreement and the JV Agreement constitute one overall agreement as "utterly unpersuasive." The trial court found that the terms of the agreements evidence "two completely separate agreements about two very different transactions for very different purposes" as the T1 Club Agreement provided MSF with club benefits, whereas the JV Agreement described the joint venture between the parties "in order for them both to profit." Moreover, the JV Agreement included an integration clause stating that it was the "entire agreement" between the parties and "supersedes any prior understanding or representation of any kind preceding the date of this Agreement."
The trial court thus concluded that Emotive had failed to demonstrate an agreement to arbitrate MSF's claims regarding alleged breach of the JV Agreement. This appeal followed.
II. DISCUSSION
The California Arbitration Act (Code Civ. Proc., § 1280 et seq.) (CAA) sets forth "a comprehensive statutory scheme regulating private arbitration in this state." (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) Under the CAA, a party may petition the court to compel other parties to arbitrate a dispute that is covered by an agreement to arbitrate. (§ 1281.2.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In its petition to compel arbitration, Emotive argued that the dispute presented in MSF's complaint is governed by the arbitration clause in the T1 Club Agreement. At the hearing, MSF argued that the dispute is instead governed by the JV Agreement, which is separate from the T1 Club Agreement and provides for disputes to be brought to court. The trial court agreed with MSF and denied the petition. No conflicting extrinsic evidence was presented in the trial court regarding the T1 Club and JV Agreements. Accordingly, we review the trial court's denial of this petition to compel arbitration de novo. (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 890.)
Emotive makes two alternative arguments on appeal. First, Emotive argues that the trial court erred because it did not have the authority to decide the question of whether the dispute was subject to arbitration. Second, Emotive argues in the alternative that the trial court erred because it should have determined that the dispute is subject to the arbitration clause in the T1 Club Agreement and granted Emotive's petition. We address each argument in turn.
A. Authority To Decide Arbitrability of the Dispute
Emotive argues that the trial court should not have decided the question of whether this dispute is arbitrable because the T1 Club Agreement contains a delegation clause, delegating that authority to the arbitrator. MSF disagrees because it argues that the JV Agreement governs the dispute, and the JV Agreement does not have an arbitration clause or a delegation clause.
While "[c]ourts presume that the parties intend courts, not arbitrators, to decide . . . disputes about 'arbitrability,' " parties may agree to delegate such questions to an arbitrator. (Aanderud, supra, 13 Cal.App.5th at p. 891, quoting BG Group, PLC v. Republic of Argentina (2014) 572 U.S. 25, 34 and Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 68-69.) Accordingly, "the question 'who has the primary power to decide arbitrability' turns upon what the parties agreed about that matter." (Aanderud, supra, 13 Cal.App.5th at p. 891, quoting First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 943.)
To establish a delegation of authority to an arbitrator, it must be shown by "clear and unmistakable" evidence that the parties intended such a delegation. (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 239, citing Rent-A-Center, supra, 561 U.S. at p. 69.) The party seeking to enforce a delegation clause bears the burden to demonstrate that the delegation is clear and unmistakable. (Tiri, at p. 242.) Ambiguity will be deemed insufficient. (Ibid.)
Here, Emotive argues not only that it met this burden, but also that the trial court was required to grant its petition to compel arbitration because MSF failed to specifically challenge the delegation clause. We turn first to the question of whether Emotive met its burden.
1. Clear and Unmistakable Delegation
On appeal, Emotive does not argue that the text of the arbitration clause in the T1 Club Agreement itself shows this delegation. Indeed, the case law cited by Emotive explicitly rejects the argument. In Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413, the court determined that there was no clear and unmistakable delegation where the agreement "merely states: Any dispute as to the interpretation of this agreement shall be submitted to . . . binding arbitration.' " (Id. at p. 1440.) Like Greenspan, the arbitration clause here contains similarly general language: "In the event of any dispute concerning the validity, interpretation, enforcement or breach of this Contract, the dispute shall be resolved by arbitration." (Compare Greenspan, at pp. 1440-1441 with Tiri, supra, 226 Cal. App.4th at p. 237 [determining parties agreed to delegate questions regarding enforceability where agreement provided: "The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable."].)
Instead, Emotive argues that the arbitration clause in the T1 Club Agreement evidences a clear and unmistakable delegation because it incorporates the JAMS Streamlined Arbitration Rules and Procedures (JAMS Rules). The arbitration clause provides: "Any arbitration shall be in accordance with the then existing streamlined rules of JAMS." Specifically, Emotive argues that the delegation is provided by incorporation of JAMS Rule 8(b): "Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter." Emotive relies on Greenspan to argue that this incorporation is clear and unmistakable evidence of delegation. This reliance is misplaced for two reasons.
First, Greenspan supports MSF's argument that Emotive cannot establish a clear and unmistakable delegation through the terms of a separate agreement that is not relevant to the dispute. In Greenspan, there were multiple agreements between the parties in the record, including: (1) an agreement to arbitrate signed by the parties during mediation, before the plaintiff filed the complaint; (2) an agreement made during the preliminary proceedings in the arbitration that the arbitration would be governed by JAMS Rules; and (3) a "Stipulation for Arbitration," whereby the parties agreed to "submit all disputes, claims or controversies to neutral, binding arbitration at JAMS." (Greenspan, supra, 85 Cal.App.4th at pp. 1424-1426, 1444, fn. 3.) While the court considered the first two documents in answering the delegation question, it declined to consider the third document because that stipulation applied to a separate dispute between the parties regarding another property. (Id. at p. 1444, fn. 3.) The court concluded: "We therefore do not consider it relevant to the arbitrability issue." (Ibid.) Here, we agree with the trial court that MSF's complaint concerns Emotive's alleged breach of the JV Agreement for failure to pay MSF its equal share of the joint venture profits. The T1 Club Agreement was a completely separate agreement about a very different transaction: providing MSF with club membership. We thus conclude that the T1 Club Agreement does not evidence a clear and unmistakable delegation to decide the arbitrability of this dispute.
Second, Greenspan does not support application of its holding regarding the incorporation of JAMS Rules on this record. In Greenspan, the parties were compelled to arbitration and during the arbitration, agreed that JAMS Rules would govern. (Greenspan, supra, 85 Cal.App.4th at p. 1425.) The arbitrator rendered an award, finding the defendants jointly and severally liable on the breach of contract claim. (Id. at p. 1433.) On appeal, the defendants argued that the arbitrator did not have the authority to make this finding because the plaintiff did not plead joint and several liability on its claim. (Id. at p. 1422.) The court determined that the parties' agreement during arbitration constituted a delegation of authority to the arbitrator to decide in the arbitration that the defendants were jointly and severally liable. (Id. at pp. 1442-1443.)
Unlike Greenspan, the question here is whether incorporation of the JAMS Rules in one agreement constitutes clear and unmistakable evidence that the parties intended to delegate arbitrability of a dispute based on a separate, second agreement. In Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, we explained that the effect of an agreement to incorporate arbitration rules is context dependent. As there are "many reasons for stating that the arbitration will proceed by particular rules," it does not necessarily indicate the parties' intent to delegate threshold issues to the arbitrator. (Id. at p. 790.) This is particularly true where the incorporation does not give a party "much of a clue" that it is giving up its "usual right" to have the court decide these issues. (Ibid.) Given that the T1 Club Agreement was separate from the JV Agreement and the dispute presented in MSF's complaint, the incorporation of JAMS Rules does not sufficiently evidence the parties' intent or understanding that an arbitrator would decide the question of arbitrability in this context. Emotive has not established a clear and unmistakable delegation of authority to decide whether this dispute is arbitrable.
2. Failure To Specifically Challenge Delegation
Emotive also argues that the trial court should have granted its petition to compel arbitration because MSF challenged the T1 Club Agreement as a whole, not the specific delegation clause.
Tiri outlines the development of rules used by California courts when considering challenges to delegation clauses. (Tiri, supra, 226 Cal.App.4th at p. 240.) Prima Paint v. Flood & Conklin (1967) 388 U.S. 395, 403-404, established a general rule: where a party challenges a contract that contains a severable arbitration clause, the court may consider challenges specific to the arbitration clause but the arbitrator is to consider challenges to the contract as a whole. The general rule from Prima Paint was then extended to apply where the contract at issue is itself an arbitration agreement. (Tiri, supra, 226 Cal.App.4th at p. 240, citing Rent-A-Center, supra, 561 U.S. at p. 73.) Where a party challenges an arbitration agreement that contains a delegation clause, the court may consider challenges specific to the delegation clause but the arbitrator is to consider challenges to the arbitration agreement as a whole. (Ibid.) Our inquiry here thus requires two steps. We must first determine whether the general rule or the extension of the rule applies here. Depending on which rule applies, we must then determine whether MSF's challenge is sufficiently specific to allow it to be considered by the court.
As to the first step of the inquiry, the T1 Club Agreement is not itself an arbitration agreement. It is a membership agreement that merely contains an arbitration clause. Contrary to Emotive's assertion, this matter is not "nearly identical to that described in Tiri." The court in Tiri applied the extension of the rule because the contract at issue was an arbitration agreement, which contained a delegation clause. (Tiri, supra, 226 Cal.App.4th at p. 241.) Unlike Tiri, the T1 Club Agreement is a contract with an arbitration clause and thus the general rule applies: the court may consider challenges specific to the arbitration clause. (Id. at p. 240.)
As to the second step of the inquiry, MSF's challenge is sufficiently specific because Emotive's delegation argument is based entirely on the arbitration clause, and MSF opposes the applicability of that arbitration clause to its complaint. Again, Tiri is not "nearly identical" because in that case, the plaintiff challenged the unconscionability of the entire agreement as a whole, citing various provisions of the agreement that were not specific to the delegation clause. (Id. at pp. 247-248.) The court concluded: "It will be for the arbitrator to consider the conscionability of the agreement as a whole and its other severable provisions." (Id. at p. 250.) Here, MSF does not challenge the T1 Club Agreement as a whole. Indeed, MSF admits that it has not contested the enforceability of the T1 Club Agreement. MSF's challenge to the arbitration clause of the T1 Club Agreement covers Emotive's argument that the clause contained a delegation and is sufficiently specific to trigger consideration by the court.
In sum, we conclude that the trial court had the authority to decide the arbitrability of this dispute.
B. Arbitrability of the Dispute
While Emotive argues that the trial court did not have authority to decide arbitrability, Emotive argues in the alternative that the trial court's decision on arbitrability was in error for three reasons. First, Emotive argues that the trial court erred in placing the burden to demonstrate arbitrability on Emotive, instead of MSF. Second, Emotive argues that the trial court erred because the arbitration clause in the T1 Club Agreement covers this dispute. Third, Emotive argues that the trial court erred because it had doubts concerning the scope of the arbitration agreement and failed to resolve those doubts in favor of arbitration. We again address each argument in turn.
1. Burden on Arbitrability
Emotive relies on section 1281.2 of the CAA for its proposition that the trial court was mandated to grant the petition as a matter of law because Emotive established the existence of an arbitration agreement and MSF failed to file a timely opposition brief.
Emotive's argument misses an important qualification in Section 1281.2: "If the court determines that a written agreement to arbitrate a controversy exists, an order to arbitrate that controversy may not be refused on the ground that the petitioner's contentions lack substantive merit." (Italics added.) It is not enough that the court determine there is some agreement to arbitrate; the court must determine that the parties agreed to arbitrate that controversy.
The case cited by Emotive, Owens v. Intertec Design, Inc. (1995) 38 Cal.App.4th 72, reflects this qualification. In Owens, it was "undisputed an agreement to arbitrate the present controversy exists." (Id. at p. 74, italics added.) "Therefore, the trial court was required to order arbitration unless it properly determined grounds existed for revocation of the agreement." (Ibid.) Unlike Owens, the alleged agreement to arbitrate MSF's claims is not undisputed here.
The additional cases cited by Emotive to argue that MSF failed to meet its burden are similarly unpersuasive. In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413, the court explained that if the party opposing a petition to compel arbitration raises a defense to enforcement of the agreement to arbitrate, then that party bears the burden to provide facts necessary to that defense. No such burden applies to MSF because it has not contested the enforceability of the T1 Club Agreement here. In Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686-687, the court stated: "It seems clear that the burden must fall upon the party opposing arbitration to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute." Here, Emotive attached the T1 Club Agreement, the JV Agreement, and MSF's complaint to its petition to compel arbitration. While MSF did not file a timely opposition, its position was made clear during oral argument and on appeal. The trial court considered the evidence and arguments, and concluded that the parties had not agreed to arbitrate this dispute.
2. Scope of Arbitration Clause in T1 Club Agreement
Emotive argues next that, even if it had the burden to demonstrate arbitrability, it satisfied that burden because the arbitration clause in the T1 Club Agreement could be interpreted to cover the dispute.
" '[T]he decision as to whether a contractual arbitration clause covers a particular dispute rests substantially on whether the clause in question is "broad" or "narrow." ' " (Rice v. Downs (2016) 248 Cal.App.4th 175, 186.) A "broad" clause includes language that requires arbitration of " ' "any claim arising from or related to" ' " the agreement. (Ibid.) "Broad arbitration clauses are interpreted to apply to extracontractual disputes between the contracting parties," as long as the dispute "has its roots in the relationship created by the contract." (Howard v. Goldbloom (2018) 30 Cal.App.5th 659, 664.)
A "narrow" clause, on the other hand, includes language that requires arbitration of "a claim, dispute, or controversy 'arising from' or 'arising out of' an agreement, i.e., excluding language such as 'relating to this agreement' or 'in connection with this agreement[.]' " (Rice, supra, 248 Cal.App.4th at p. 186.) Narrow arbitration clauses are generally interpreted to be "more limited in scope" (Cobler v. Stanley, Barber, Southard, Brown & Associates (1990) 217 Cal.App.3d 518, 530) and "apply only to disputes regarding the interpretation and performance of the agreement" (Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1052). Accordingly, we must first determine whether the language of the arbitration clause in the T1 Club Agreement is broad or narrow, and then determine whether this dispute falls within the language of the broad or narrow clause.
The language in the T1 Club Agreement evidences a narrow arbitration clause. The T1 Club Agreement requires arbitration of "any dispute concerning the validity, interpretation, enforcement or breach of this Contract." (Italics added.) There is no language that covers disputes "relating to" or "in connection with" the agreement. (Rice, supra, 248 Cal.App.4th at p. 186.) Indeed, the language is even more limited than the narrow clauses described in Rice because the T1 Club Agreement arbitration clause does not even cover disputes "arising from" the agreement. (Ibid.) For this reason, Emotive's reliance on Cione v. Foresters Equity Services, Inc. (1997) 58 Cal.App.4th 625 is unpersuasive. In Cione, the plaintiff entered into an agreement containing an arbitration clause to arbitrate " 'any dispute, claim or controversy that may arise between me and my firm' " when he began his employment. (Id. at p. 630, italics added.) The court determined that this clause applied to the plaintiff's employment dispute. (Id. at p. 645.) The arbitration clause here contains much more narrow language.
Having determined the T1 Club Agreement contains a narrow arbitration clause, we must next decide whether the dispute presented in MSF's complaint is covered by the language of the arbitration clause. As described above, we agree with the trial court that MSF's complaint is based on Emotive's alleged breach of the JV Agreement for failure to abide by its terms for sharing the joint venture profits. These allegations are unrelated to MSF's status as a corporate member of Emotive's driving club. This is not a dispute "concerning the validity, interpretation, enforcement, or breach" of the T1 Club Agreement. To conclude otherwise would be even more problematic in light of the JV Agreement's integration clause that it "constitutes the entire agreement between First Party and Second Party, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement." While the integration clause does not terminate the parties' obligation to arbitrate disputes related to the T1 Club Agreement, it supports the conclusion that this dispute falls within the scope of the JV Agreement and its provision to submit such disputes to court. (See Oxford Preparatory Academy v. Edlighten Learning Solutions (2019) 34 Cal.App.5th 605, 610-611.) The narrowness of the arbitration clause, in contrast to the terms of the JV Agreement and the nature of MSF's complaint, compels the conclusion that this dispute falls outside the scope of the T1 Club Agreement's arbitration clause.
3. Doubts Resolved in Favor of Arbitration
Finally, Emotive argues that the trial court erred because the trial court had doubts concerning the scope of the arbitration agreement and failed to resolve those doubts in favor of arbitration.
"California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration." (Coast Plaza, supra, 83 Cal.App.4th at p. 686.) This policy "has resulted in the general rule that an arbitration clause should be upheld 'unless it can be said with assurance that the clause is not susceptible to an interpretation covering the asserted dispute.' " (Ibid.) "There is no public policy, however, that favors the arbitration of disputes the parties did not agree to arbitrate." (Aanderud, supra, 13 Cal.App.5th at p. 890.) Consistent with general contract principles, a party cannot be compelled to accept arbitration of a dispute that they have not agreed to arbitrate. (Bono v. David (2007) 147 Cal.App.4th 1055, 1063.)
The order denying Emotive's petition to compel arbitration makes clear that the trial court did not have doubts regarding the scope of the arbitration clause in the T1 Club Agreement. Indeed, the trial court described Emotive's arguments as "utterly unpersuasive." Contrary to Emotive's suggestion, the trial court's acknowledgement that the two agreements involve the same parties and the use of race cars does not suggest doubts as to the scope of the arbitration clause. We agree with the trial court that the T1 Club Agreement is separate and distinct from the JV Agreement and MSF's complaint. It can be said with assurance that the arbitration clause in the T1 Club Agreement does not cover this dispute.
III. DISPOSITION
The order is affirmed. MSF is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
STREETER, J. WE CONCUR: POLLAK, P. J.
TUCHER, J.