Filed 9/29/16 Blue Haven National Management v. Gordon & Rees CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

BLUE HAVEN NATIONAL MANAGEMENT, INC., et al ., Plaintiffs and Respondents,

v. GORDON & REES, LLP, et al ., Defendants and Appellants. D062967

(Super. Ct. No. 37

- 2012

- 000 96122

-

CU

- PN

- CTL )

APPEAL from an order of the Superior Court of San Diego County, Jeffrey B. Barton, Judge . Affirmed. Pettit Kohn Ingrassia & Lutz, Douglas A. Pettit, Valerie Garcia Hong and Derek
Hecht for Defendants and Appellants

. Panakos Law Center, Stephen L. Gordon ; and Robert Tier for Plaintiff s and Respondent s
. Defendants Gordon & Rees LLP (G&R) , Kevin Alexander, and Eric Volkert
appe al from the trial court ' s order denying their motion to compel arbitration of legal2

malpractice and other claims by p laintiffs Blue Haven National Management, Inc. ( Blue
Haven ), Golden State Industries, Inc. ( Golden State ), P&A Holdings, Inc. (P& A), Robert Namer, and R ' Nelle Lahlou, also known as R ' Nelle Lazlo (Lazlo), in connection with
defend ants ' representation of plaintiffs in Katz v. Blue Haven National Management Inc. , et al. (Super. Ct. San Diego County, No. 37

- 2009

- 00097863; AAA Case # 73 166 00064 10 DEVI) ( Katz )

. 1 No legal services agreement was prepared for Katz . Rather,
defendants rely on an arbitration provision in a legal services agreement with Blue Haven
and Golden State in an earlier case, Davis et al. v. Blue Haven National Mana geme nt
Inc. , et al. (Super

. Ct. Los Angeles County, No. BC 380153) ( Davis ). They contend this agreement applied to their work on Katz , including with respect to the nonsignatories (Namer, Lazlo, and P&A)

. Plaintiff s contend the a greement did not apply to Katz and
that , even if it did , the nonsignatories still would not be required to arbitrate. W e conclude the Davis agreement does not require any plaintiff s to arbi t r ate Katz

- related dispute s . The order is affirm ed

.

I

. FACTUAL AND PROCEDURAL BACKGROUND
A. Background of the D ispute
1. Davis In January 2009 G&R was retained to represent Blue Haven and Golden State in
Davis , which was filed in the Superior Court of Los Angeles County. On January 20, 2009, G&R entered into a legal services agreement with Blue Haven and Golden State

1 Trial court case reference information noted herein is drawn from the parties ' briefs and the record.3

( Davis Agreement ). The agreement defined " Attorney " as G&R and " Client s " as Blue
Haven and Golden State

. Alexander , managing partner of G&R ' s San Diego office, signed on behalf of G&R. Namer signed on behalf of the companies as the executive vice p resident of each entity

. Several portions of the Davis Agreement are pertinent to the parties ' arbitration dispute. The scope provisions provide :

" 2. LEGAL SERVICES TO BE PROVIDED. The legal services to be provided by Attorney to Clients are as follows: advising Clients in connection with the dispute arising from the civil suit entitled Ronald Davis and Carol Davis, et al v. Blue Haven National Management, Inc., et al. , Los Angeles Superior Court Case No.: BC 380153.; and other legal matters upon request by Clients and written acknowledgement by Attorney to perform such other services.

" 3. LEGAL SERVICES SPECIFICALLY EXCLUDED. If Clients desire Attorney to provide any legal services not to be provided under this Agr eement, a separate agreement between Attorney and Clients will be required. "
Alexander addressed these provisions in a declaration supporting the motion to compel

. 2 Discussing p aragraph 2, Alexander stated G&R intended the Davis Agreement to apply to " ' other legal matters ' requested by Blue Haven , [ Golden State ] , or Namer as recurring clients for future matters that G&R acknowledged

. . . in writing

. " He explained p aragraph 3 " required that the pa rties would prepare a different agreement if the parties did not want the LSA to apply. " At his deposition, Alexander elaborated that

2 Unless otherwise noted, G&R partners discussed herein provided statements in declarations filed in support of the motion to compel.4

t he intent of p aragraph 2 was to " provide an easier mechanism so that we don ' t have to
reinvent the wheel e very time a new matter comes in . . . . " Another provision, p aragraph 4, addresses the parties ' responsibilities. G&R agreed to " perform the legal services called for under this Agreement, keep Clients informed of progr ess and developments, and respond promptly to Clients ' inquiries and
communications. " Blue Have n and Golden State agreed to " cooperate with Attorney , attend all meetings, arbitrations, mediations or court events as requested, provide necessary declarations, promptly pay all fees and costs, and keep [ Attorney ] informed of
Clients ' whereabouts. "
Fin ally, t he malpractice arbitration provision , p aragraph 17, stated in relevant part:

" If a dispute arises between Attorney and Clients (defined as including any agents, employees, officers, representatives or related entities or persons of Clients) as to w hether any legal services rendered by Attorney under th is agreement or otherwise, were improperly, negligently, or incompetently rendered, or otherwise rendered in breach of a contractual or ethical duty, the dispute will be submitted for arbitration, and Attorney and Clients will be bound by the result. [¶]

. . . [¶]

. . . Attorney and Clients agree that this Attorney ' s law office in San Diego, California shall be a proper venue for any legal proceedings hereunder. "
2

. Seyfferth In or around February 2009, Blue Haven and Diving Lady Pools of Arizona, Inc. , were sued in Arizona in Robert S eyfferth Company, Inc. , et al. v. Diving L ady Pools of Arizona, Inc , et al. (Super. Ct. Maricopa County, No. CV 2009

- 090480) ( Seyfferth ).5

According to G&R partner Dav id O ' Daniel, Namer reque sted G&R provide representation and G&R agreed to do so. O ' Daniel stated G&R " engaged in many communications, including but not limited to written correspondence [] , billing invoices, and verbal discussions, with Mr. Namer confirmin g acknowledgment of representation, "
but the record contains none of th e letters or invoices. O ' Daniel indicated he was
informed and believed Blue Haven was an existing client when he began representing it

. H e also believed a " written agreement existed concerning

. . . legal services by

. . . G&R for a lawsuit involving [ Blue Haven ] and [Golden State] and their ' other legal matters. ' "
O ' Daniel indicated no written agreement was requested for Seyfferth

. T he record
contain s a n unsigned legal se rvices agreement for Seyfferth ( Seyfferth Agreement) , but
O ' Daniel did not address it

. 3
3. Zamel In or around April 2009, all of the plaintiffs were sued in California in Zamel Enterprises LP v. Eisman et al. (Super. Ct. San Diego County, No. 37

- 2009

- 00088045

- CU

- BT

- CTL ) ( Zamel )

. As with Seyfferth , a G&R attorney (here, Alexander) indicated Namer requested representation, G&R agreed to provide it, and t here were written communications and invoices (which, agai n, are not in the record). G&R partner
Marshall Brenner provided input on Zamel

. H e believed Blue Haven and Golden State

3 According to plaintiff s ' opp osition brief in the trial court, defendants " emailed [an] LSA [legal services agreement] ( hereinafter ' Seyfferth LSA ' ) to Blue H aven that specified the legal services to be provided. (Declaration of Aaron Sadock . . . , Exhibit A.) " However, Sadock ' s declaration attached only the agreement, not the e
- mail, and did not address the preparation of the agreement or why it remained un signed

.6

were existing clients and a written legal services agreement was in place. Brenner prepared a letter acknowledging the representation and seeking a conflict waiver , which
he indicate d plaintiffs provided

. The letter is not in the record

. Brenner indicated plaintiffs did not request a new legal services agreement for Zamel

. 4

. TMC In or around May 2009, Golden State was sued in Arizona in TMC Pool Care & Repair LLC v. Golden State Industries, Inc. (Super. Ct. Maricopa County, No. CV 2009

- 091543) ( TMC )

. Namer requested that G&R provided representati on
. G&R entered a legal services agreement with Golden State ( TMC Agr eement). Namer signed on behalf
of Golden State , but t he page with G&R ' s signature is omitted from the record. The TMC Agreement contains similar scope provisions to the Davis Agreement

. 4 The agreement
also contains an arbitration provision, but it diff ers from the one in the Davis Agreement ( including by requiring arbitration to take place in Arizona ).

4 The TMC scope provisions are as follows: " 2. LEGAL SERVICES TO BE PROVIDED. The legal services to be provided by Attorney to Client are as follows: advising and defending Client in connection wi th the dispute arising from the civil suit entitled [ TMC ] v
. [ Golden State ] . . . , and other legal matters upon request by Client and written acknowledgment by Attorney to per form such other services. [¶] 3. LEGAL SERVICES SPECIFICALLY EXCLUDED. If Client desires Attorney to provide any legal services not to be provided under this Agreement, a separate agreement between Attorney and Client will be required. "7

5. Katz
On September 4 , 2009, plaintiffs were sued in California in Katz , along with t wo additional parties, Al vin G. Eisman and BRP, Inc. 5 Plaintiffs were served on September
9. On September 10 , Namer sent the Katz co mplaint to Alexander by e

- mail

. According

to Alexander , Namer requested that G&R provide representation and Alexander advised
him to contact his insurance carrier to seek approval of G&R

. On September 15 , t he
carrier e
- m ailed Alexander (copying Namer), identifying P&A as the insured party, indicating Namer consented to the carrier sending a copy of the Katz complaint , and asking Alexand er to advise whether G&R could repres ent P&A. On September 22,
Alexander sent the carrier a nd Namer a letter referencing Katz and stating , " Thank you for engaging [G&R] in connection with the above matter. " Plaintiff s did not request a new legal services agreement for Katz

. On June 18, 2 010, Alexander sent Eisman, Namer, and Lazlo a letter, stating in part : " Dear Al, Robert, and R ' Nelle: [¶] We are pleased to have the opportunity to defend you and [ Blue Haven ], [ Golden State ], [ and P&A] . . . in the [ Katz ] matter. . . . [¶] The p urpose of this letter is to seek your written approval of our joint representation and waiver of any actual or potential conflict of interest. " Lazlo signed the waiver letter for
herself , while Namer signed on behalf of himself and (it appears) the corporate ent ities

. Alexander indicated Namer represented to him that he was e xecutive vice p resident and
d irector of Blue Haven , Golden State , and P&A , while Lazlo represented she was vice
5 It appears Eisman and BRP are not parties to the malpractice action here . We omit further dis cussion of them, unless necessary to provide context.8

president and d irecto r of Blue Haven. Alexander stated Namer also advised him that P&A was a related entity of Blue Haven and Golden State. Neither the September 22 or June 18 letter mention ed the Davis Agreement or arbitration under it . At his deposition, Alexander indicated the June 18 l etter was an

" example of a written acknowledgement to pe rform legal services. " His understanding was that the letter, along with " prior confirming written letters, " was " [ p ] art and parcel "
of " trigger[ing] Paragraph 2 of the Davis Agreement

. . . . " He d id not " recall specifically discussing with [Namer and Lazlo ] the Davis LSA during the Katz case. " 6

B. Malpractice l itigation and motion to compel
Plaintiff s later sued defendants in connection with their work on Katz , for legal malpractice and other claims

. Defendants requested that plaintiffs stipulate to arbitration,
based on the Davis Agreement. Plaintiffs rejected the request. Defendants then filed a motion to compel arbitration , which plaintiff s opposed

. T he trial court denied the motion

. The court explained defendants had the burden
to show plaintiff s entered a valid written arbitration agreem e n t and their reliance on the
Davis Agreement was " unavailing. " First, the court noted the a greement was entered into

" almost nine months prior " to Katz

. Second, the court found the agreement ambiguous.
It explained: " Paragraph 2 suggests that if other legal matters other than Davis are worked on, there must be a written acknowledgment by the attorney to provide the
additional services. One could presume that the legal matters performed upon request by
6 N either party addresses Volkert ' s role here . From the first amended c omplaint, it appears he was a G&R partner and lead counsel in Katz

.9

the clients would be somewhat related to the Davis case, rather than to an unrelated
lawsuit. However, p aragraph 3 suggests that there must be a separate written agreement
if there are oth er legal services to be performed. " The court observed any ambiguity in a retainer agreement is construed against the attorney. It also noted defendants asserted plaintiff s never requested a new agreement, but did not show it was their responsibility to
do so. Third, the court focused on the parties ' conduct, observing the September 22 and
June 18 letter s did not mention arbitration as part of the representation ( or the Davis Agreement ) and defendants " had entered

. . . intervening retainer agreements

. . . . " The

court queried how a client would know " which arbitration provision should be the one relied upon

. . . . " Finally, the trial court stated, without elaboration, that defendants sought to " hold non

- signatories to the arbitration agreement merely because [ they ] represented these other parties in other cases, or by agency. "
The trial court concluded defendants had no t met their burden to show a valid arbitration agreement. D efendants timely appealed.
I I

. DISCUSSION
A. Applicable L aw 1. Rel evant principles regarding enforcement of an arbitration agreement

" [W]hen presented with a motion to compel arbitration, the court ' s first task is to determine whether the parties have entered into an agreement to arbitrate their claims

. [Citation.] Courts ' apply general California contract law to determine whether the parties formed a valid agreem ent to arbitrate their dispute. ' [Citation.]

. . . ' ' The petitioner [seeking arbitration] bears the burden of proving the existence of a valid arbitration10

agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its
defense. " ( Ramos v. Westlake Services LLC (20 15) 242 Cal.App.4th 674, 685

- 686 ( Ramo s ) .)
I n determining the scope of an arbitration clause, " ' " [t]he court should attempt to give effect to the parties ' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made [citation]. " ' " ( Bono v. David (2007) 147 Cal.App.4th 1055 , 1063 ( Bono ) .) " [T] he terms of the specific arbitration clause under consideration must reasonably cover the dispute as to which arbitration is requested. " ( Ibid. ) " The bur den is on

. . . the party opposing arbitration[] to show that the arbitration clause cannot be inter preted to cover the
claims

. . . . " ( EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1321 ( Pless ). )

" ' 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

. ' " ( Bono , supra , 147 Cal.App.4th at p. 1062.) However, " ' " ' there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate

. . . . ' " ' " ( Id

. at p. 1063.)
2. Relevant principles of contract interpretation
The " ordinary rules of contract interpretation " are well established. ( Santisas v.
Goodin (1998) 17 Cal.4th 599, 6 08 ( Santisas ) .) " ' [ T] he mutual intention of the parties at11

the time the contract is formed governs interpretation. (Civ. Code, § 1636.) [ 7 ] Such intent is to be inferred, if possible, solely from the written provisions of the contract. ( Id. , § 1639.) The " clear and explicit " meaning of these provisions, interpreted in their

" ordinary and popular sense, " unless " used by the parties in a technical sense or a special meaning is given to them by usage " ( id. , § 1644), controls judicial interpretation. ( Id

. , § 1638.) ' " ( Ibid. )

" ' A [contract] provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. [Citation.] But language in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract. ' " ( Pless , supra , 150 Cal.App.4th at p. 1321.) "

' A party ' s conduct occurring between the execution of the contract and a dispute about the meaning of the contract ' s terms may reveal what the parties understood t hose terms to

mean. ' " ( Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, 915 ( Banning Ranch ).)

" It is a well

- settled rule of law that ambiguities in a written contract are to be construed against the party who drafted it. " ( Victoria v. Superior Court (1985) 40 Cal.3d
734 , 745 ( Victoria ).) Further, i n the context of legal services, " [a] ny ambiguity in a retainer agreement is construed in favor of the client and against the attorney. " ( Banning
Ranch , supra , 193 Cal.App.4th at p. 91 3 ; see Mayhew v. Benninghoff (1997) 53 Cal.App.4th 1365 , 1370 [affirming denial of attorney ' s motion to compel business dispute

7 Subsequent statutory references are to the Civil Code unl ess otherwise noted.12

with client; noting " the doctrine of contra proferentum (construing ambiguous agreements against the drafter) applies with even greater force when the person who
p repared the writing is a lawyer " ] ( Mayhew ).)
3

. Standard of review
T he relevant facts are not in dispute. Therefore, this appeal presents questi ons of law, which we review de novo. (See Turtle Ridge Media Group, Inc. v. Pacific Bell Directory (2006) 140 Cal.App.4th 828, 833; Los Angeles County Metropolitan Transportation Authority v. Shea

- Kiewit

- Kenny (1997) 59 Cal.App.4th 676 , 682 , fn. 2. )
B. Application
1

. Applicability of the Davis Agreement to Katz As a preliminary matter, we observe there is no genuine dispute as to the existence of an arbitration obligation here , but rather as to its scope

. The Davis Agreement contains an arbitration provision, and plaintiff s do not contest this provision ' s existence or validity. Rather, the parties focus on the Davis Agreement ' s scope provisions and whether, under these provisions, the agreement as a whole applies to Katz

. Thus, f or purposes of our analysis, we assume defendants established a valid arbitration agreement

. ( Ramos , supra , 242 Cal.App.4th at pp. 685

- 686.) 8 We now address the issue before us: whether that obligation extends to Katz

.

8 We recognize the trial court suggested the issue was the existence of an arbitration agreement, not its scope. However, we " review the trial court ' s ruling, not its rationale

. " ( City of Santa Monica v. Stewart (2005) 126 Cal.App. 4th 43, 80 ( Stewart ). ) We also note plaintiff s contend, at the end of their brief, that the Davis Agreement is void or voidable due to a purported conflict of interest by G&R in Katz

. Even if the conflict issue were13

a. Language of the Davis Agreement
I n order to discern the parties ' intent, we turn first to the agreement ' s terms. ( See
Santisas , supra , 17 Cal.4th at p. 608 .) Paragraph 2 incl udes " other legal matters " as services provided under the agreement, while p aragraph 3 states that " [i]f Clients desire Attorney to provide any legal services not to be provided under this Agreement , a separate ag re ement . . . will be required. " D efendants contend a plain reading of these provisions encompasses non
- Davis work, an d suggest they operate togethe r as follows: (1) under p aragraph 2, if plaintiff s want G&R to perform non

- Davis work under the terms
of the Davis Agreement , they make a request and G&R provides written confirmation; and (2) under p aragraph 3, if G&R does no t provide confirmation , or plaintiff s want legal
services under different terms , a new agreement is required. In contrast, plaintiff s suggest that the way to make p aragraph s 2 and 3 consistent is for p aragraph 2 to
encompass Davis advice and, upon request, other Davis

– related work ( e.g
. , " follow

- on

matters " ) , and for p aragraph 3 to apply to non

– Davis work. 9 Contrary to defend ants ' position, the scope provisions do not clearly permit non

– Davis work under the Davis Agreement

— and, contrary to plaintiff s ' view, they do not

properly before us (which defend ants dispute ) , we need not reach it, given our conclusion that the Davis A greement does not require arbitration of Katz

- related disputes. 9 The parties also disagree about what the agreement covers, prior to any request for additional work. Plaintiffs rely o n p aragraph 2 to suggest it encompasses only " advising " in Davis (in contrast to the " advising and defending " language in TMC ) and the clients would have to request other Davis work

. Defendant s cite the duties l isted in p aragraph 4 to show the agreement already covers other Davis work, beyond advising. We not need resolve this di spute, as the issue here is non

– Davis work, but it underscores the agreement ' s lack of clarity.14

clearly exclude it. T he provisions reasonably permit both interpretations

. Because the
p rovisions permit different const r uctions, we will treat them as ambiguous. ( Pless , supra , 150 Cal.App.4th at p. 1321. ) In turn , we must construe the agreement against defend ants,

as both the drafters and the attorneys here . ( Victoria , supra , 40 Cal.3d at p. 745 ; Banning
Ranch , supra , 193 Cal.App.4th at p. 913. ) We conclude t he Davis A greement ' s scope provisions do not reflect the parties mutually intended the agreement to extend to non

– Davis work

. Defend ants disagree that the scope provisions are ambiguous. They maintain the provisions " provide a framework " for future work , including " matters in addition to . . .
Davi s
. " But, as discussed above, the agreement does not clearly extend to such matters

— and Alexander ' s explanation about G&R ' s intent does not bridge the gap . ( Reigelsperger
v. Siller (2007) 40 Cal.4th 574, 579 [ " [U] ncommunicated subjective intent is
irrelevant. " ]

. ) Focusing on the trial court ' s order, defend ants also contend the court

" ignore[d] that [the paragraphs] operate in conjunction, " the court ' s " interpretation of each paragraph renders the other paragraph superfluous, " and the court was spec ulating in presuming that p aragraph 2 ' s " other legal matters " language referred to Davis

. These
concerns are unfounded

. First, t he court ' s order reflects it consider ed both paragraphs together. Second, t he court ' s reading neither result s in superfluous language, n or suggests the court was engaged in speculation. R ather, it appears to result in p aragraph 2 covering15

Davis

– related work and p aragraph 3 covering other legal services, which, a s discussed

ante , is a reasonable interpretation. 10
b

. Parties ' course of conduct We now turn to the parties ' cou rse of conduct. (See Banning Ranch , supra , 193 Cal.App.4th at p. 91 5.) We conclude the ambiguity of the scope provisions is highlighted, not rectified, by the parties ' conduct.
Defend ants contend the Katz events support their position, as plaintiff s purportedly engaged G&R under the terms of the Davis Agreement , never objected to or expressed confusion about these terms, and did not request or sign a new agreement. However, the documentation upon which defendants rely (including the September 22
and June 18 letters ) do es not mention Davis , and Alexander did not recall discussing
Davis with Namer and Lazlo during Katz

. Put simply , there is no evidence plaintiff s

were even aware that defend ants vie wed the Davis Agreement as applicable to Katz , much less that plaintiff s engaged G&R under its terms. In turn, we ascribe no significan ce to plaintiff s ' failure to object to these terms or request a new agreement to avoid their application

. Defend ants also cite Seyfferth and Zamel as further evidence that plaintiff s understood that the Davis Agreement applied to non

– Davis legal matters

. But this argument fails for the same reasons as defend ants ' contentions regarding Katz : T here is
10 To the extent the court ' s order can be read as finding the provisions were ambiguous on their face , as defend ants suggest, this does not aid defend ants. Even if the court identified a different basis for ambiguity, the result

-- construing the agreement against defendants

— was correct. (See Stewart , supra , 126 Cal.App. 4th at p. 80.)16

no evidence th at do cumentation in these matters referenced the Davis Agreement or that
G&R otherwise discussed its application , so there is no relevance to any absence of objections or new agreements. Indeed, the record is devoid of any documentation from Seyfferth or Zamel , besides the unsigned Seyfferth Agreement. Finally , defend ants contend the existence of the TMC Agreement does not
undermine their reliance on the Davis Agreement. We disagree. T he TMC Agreement scope provisions parallel those in Davis , but its arbitration provision differs. As the trial
court observed, it is unclear how a client would know which agreement control led

. 11
Defend ants suggest the TMC Agreement was intend ed to cov er Arizona litigation.
However , nothing in the TMC A greement states this intent and there is no evidence plaintiff s were aware of it

. In addition , defend ants offered inconsistent argument s for the other Arizona case, Seyfferth . In their opening brief, defend ants contend the Davis Agreement applied in Seyfferth an d do not address the unsigned Seyfferth Agreement.
But o n reply, defend ants acknowledge the Seyfferth Agreement and suggest that, as in
TMC , the Arizona venue req uired different terms

— without clarifying their earlier position. Defend ants also contend we should not consider the party ' s preparation of the
TMC Agreement in assessing intent. This contention is c ontrary to both contract interpretation principles ( Banning Ranch, supra, 193 Cal.App.4th at p. 915) and

11 The parties discuss Thiele v

. Merrill Lynch , Pierce, Fenner & Smith (S.D. Cal. 1999) 59 F.Supp.2d 1067, in connection with the existence of multiple agreement s here. Thiele deals with a superseded agreement, which is n ot at issue, and thus is inapposite. (See Thiele , at pp. 1070

- 107 2 [company could not enforce arbitration under earlier, superseded contract].)17

defend ants ' other arguments ( e.g. , their attempt to rely on party conduct in Seyfferth and
Zamel )

. 12
We conclude the Davis Agreement does not require arbitration of Katz

- related disputes. If defend ants desired the Davis Agreement, and its arbitration obligation, to extend to other matters, it " was [their] responsibility to draft a clear and explicit agreement to that effect

. . . . " ( Mayhew , supra , 53 Cal.App.4th at p. 1370.) 13

2

. Applicability of the Davis Agreement to non s ignatories
Because defend ants cannot compel arbitration of Katz

– rel ated disputes under the
Davis Agreement, we need not deter mine whether the nonsignatories are bound to
arbitrate such disputes . However, we elect to address certain of defend ants ' arguments in this regard. The " general rule " is " against compelling nonsignatories to arbitrate , " but

12 In an argument relating to party conduct, defend ants question the relevance of the trial court ' s finding that nine months passed between the Davis Agreement and Katz . We agree the passage of time, without more, would not render an arbitration agreement unenforceable. (See, e.g. , Buckhorn v. St. Jude Heritage Medical Group ( 2004) 121 Cal.App.4th 1401, 1403, 1407 [rejecting plaintiff ' s effort to avoid arbitration under employment agreement because claims occurred after employment ended, explaining

" temporal test misconstrue [d] the applicable standard " and arbitrability did not turn on

" when the [] [claims] occu rred. " ]; cf. Cochran v. Ruben s (1996) 42 Cal.App.4th 481 , 488 [physician could not compel arbitration under agreement signed three years prior, where evidence reflected relationship terminated at the time ].) 13 We note that neither the parties, nor the trial court, focus on the actual arbitration provision in the Davis Agreement (p aragraph 17), which purports to require Blue Haven and Golden State to arbitrate disputes over G&R ' s legal services " under this agreem ent or otherwise

. . . . " On appeal, G&R has failed to make, and thus has forfeited, any argument based on this language. ( People v. Stanley (1995) 10 Cal.4th 764, 793 [ "' [E]very brief should contain a legal argument with citation of authorities on the p oints made. If none is furnished on a particular point, the cou rt may treat it as waived. '" ] .)18

there are exceptions. ( Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1065 ( Crowley ) .) Defend ants do not establish any. First, defend ants suggest the nonsignatories are required to arb itrate as third party
beneficiaries of the Davis Agreement. T his can be a basis for compelling arbitration ( Crowley, supra, 158 Cal.App.4th at pp. 1069

- 1070 ) , but the third party beneficiary must
be " one of a class of persons for whose benefit [the agreem ent] was made. " ( Steve Schmidt & Co. v. Berry ( 1986) 183 Cal.App.3d 1299, 1313 .) " ' [I] t is not enough that the third party would incidentally have benefited from performance. [Citations.] ' [Citation.]

' The contracting parties must have intended to confe r a benefit on t he third party. ' " ( Epitech , Inc. v. Kann (2012) 204 Cal.App.4th 1365 , 1372 .) Under the Davis Agreement , G&R agreed to provide legal representation to Blue Haven and Golden State

. Defend ants identify no thin g in the Davis Agreement o r the record t o suggest the agreement was
intended to benefit the non signatories

. Even if it were sufficient for the nonsignatories to
receive benefits, defend ants have not made that showing , either. They suggest the nonsignatories benefited from the Davis Agreement by receiving legal representation in
Katz and other matters. But they have not established Katz or the other matters were governed by the Davis Agreement , meaning they cannot characterize that legal work as a
benefit of th e Davis A greement

. T he authorities cited by defend ants do not support their position

. ( § 3521 [providing " he who takes the benefit must bear the burden , " italics added ] ; NORCAL Mutual Insurance Company v. Newton (2000) 84 Cal.App.4th 64, 67

- 68, 84 [ wife of insured psychi atrist required to arbitrate malpractice dispute covered by insurance policy,19

under which both psychiatrist and wife received a defense ; " fundamental point " was she could not use policy to her advantage, then avoid arbitration under it ]; Macauley v. Norlander (1992) 12 Cal.App.4th 1, 4 , 7

- 8 ( Macauley ) [introducing broker could enforce arbitration against investors, as beneficiary of agreement between investors and clearing broker, where, among other things, agreement explained dual

- broker relation ship, was
necessary to service investor accounts , and stated arbitration provision applied t o introducing broker ].) 14
Second, defend ants argue the nonsignatories can be comp e lled to arbitrate based

on their pre exis ting relationships with G&R

. A preexist ing relationship can " ' mak [e] it equitable to compel the nonsignator [ies] to

. . . be bound to arbitrate ' " and " supports the implied authority of the party to bind the nonsignatory. " ( Matthau v. Superior Court (2007) 151 Cal.App.4th 593, 600 .) Again, h owever, defendants do not establish these principles apply here.
Defend ants contend the Davis Agreement ' s arbitration provision states it applies to

" agents " and " related entities " and that the nonsignatories must ar bitrate under these provisions. Howeve r, defend ants do not explain how this language would be sufficient to bind nonsignatories to arbitration, absent any showing that Blue Haven or Golden State had authority to bind them or that it would be equitable to do so. (See, e.g. , Weyand , 14 Macauley is also distinguishable because it involved a nonsignatory seeking to compel arbitration. (See Benasra v. Marciano (2001) 92 Cal.App.4th 987, 991 ( Benasra ) [ " It is one thing to permit a non signatory to relinquish his right to a jury trial, but quite another to compel him to do so

. ]; DK Joint Venture 1 v. Weyand ( 5th Cir. 2011) 649 F.3d 310, 316 ( Weyand ) [ " ' [I] t matters whether the party resisting arbitration is a signatory or not

. ' " ].)20

supra , 649 F.3d at pp. 318

- 319 [rejecting argument that officers were bound to arbitrate because agreements referred to " affiliates " and officers were affiliates, explaining that

" even if the . . . Agreements could be interpreted in that manner, " the corporations lacked authority to bind the officers and " [i] n the absence of such authority, the language about

' affiliates '

. . . cannot have been sufficient to make the arbitration provisions binding on [them] " ].) Neither the status of Namer and Laz lo as corporate officers, nor Namer ' s execution of the agreement on behalf of the companies , changes this analysis. ( Id . at p. 314 [ " [T] hat the

. . . corporations entered into the

. . . Agreements did not cause their agents,

. . . who acted only as office rs on behalf of the corporations, to be personally bound by those agreements. " ]; Benasra , supra , 92 Cal.App.4th at p. 991 [rejecting argument that individual who signed agreement as president of corporation was boun d to
arbitrate individual claim ].)
Defe nd ants ' reliance here on Westra v. Marcus & Millichap Real Es tate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759 ( Westra ) is misplaced.
Westra involved a real estate broker ' s motion to compel arbi tration, in a n action arising
from a transaction in which the broker was the agent for both parties

. ( Id. at pp. 762

- 763, 766.) The broker relied on the arbitration clause in the transaction ' s purchase agreement, to which it was not a party

. ( I d. at p. 763 .) The court held the broker could compel

ar bitration , based on the preexisting relationship s and the arbitration provision, which
stated , " Buyer, Seller, and Agent agree

. . . " to arbitration. ( Id . at p . 76 6 .) Here, in
contrast, the Davis Agreement did not reflect that the nonsignatories agreed to arbitrate, but, rather, simply identified agents and related entities as parties purportedly required to21

arbitrate. Further, unlike the Westra broker, who was involved in the underlying
transaction , defend ants do not establish the nonsignatories had a ny role in the Davis case
tha t would render arbitration equitable

. ( Id. at p. 765.) 15
In addition , defend ants suggest compelling arbitration would be equitable because all respondents were " frequent clients, " and reiterate that prior to Katz , G&R repres ented plaintiff s in Davis , Zamel , and Seyfferth , " all under the terms of the Davis LSA. " But , again, defend ants did not establish the post

– Davis cases were under the terms of the
Davis Agreement . In turn, they provide no authority that simply being a frequent client, without more, would make it equitable to require arbitration under a legal services agreement for a previous matter

. Finally, defend ants suggest the nonsignatories impliedly consented to arbitrat ion
under the Davis Agreement , based on their agreement to the Katz conflict waiver and

" continue d representation " by defend ants following Davis , including in Katz

. Even if implied consent were a basis for compelling arb itration (and defend ants direct us to no authority that it is ), defend ants provide no evidence of such consent. 16 Rather, they

15 In addition, Westra , like Macauley , supra , 12 Cal.App.4th at p age 4, involved a nonsignatory attempting to compel arbitration. ( Westra, supra, 129 Cal.App.4th at p. 763.) See foot note 14 , ante

. 16 Bak v. MCL Financial Group , Inc. (2009) 170 Cal.App.4th 111 8, discussed by both parties with respect to the consent issue , is inapposite. ( Id. at p. 1126 [affirming sanctions order by arbitration panel against attorney who represented parties in arbitration, on grou nds he subjected himself to the panel ' s jurisdiction].)22

simply reiterate their other arguments for on

- going application of the Davis Agreement, and we reject them for the same reasons

. We conclude that none of the plaintiff s are required to arbitrate their Katz

– related disputes with defend ants

. 17

III. DISPOSITION
The order is affirmed. Plaintiff s are awarded costs on appeal.

NARES, J.
WE CONCUR:

BENKE, Acting P. J.

O ' ROURKE, J.

17 Defend ants suggest the trial court held nonsignatories can never be required to arbitrate. The court ' s order doe s not support this assertion. In any event, defend ants have not established any plaintiff s are required to arbitrate here , so any error in this regard would be harmless. (See , e.g., Americ an Federation of State etc. Employees v. County of Los Angeles (1983) 146 Cal.App.3d 879, 887.)