Filed 8/2/23 Cardenas v. Big Star Builders CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

JOSE CARDENAS et al.,

Plaintiffs and Respondents,

v.

BIG STAR BUILDERS, INC.,

Defendant and Appellant.

F084745

(Super. Ct. No. CV-21-005567)

OPINION

APPEAL from an order of the Superior Court of Stanislaus County. John D. 

Freeland, Judge.

Law Offices of Elvis Tran, Elvis Tran and Jason Hoang for Defendant and 

Appellant.

Golden & Cardona-Loya and Octavio Cardona-Loya II for Plaintiffs and 

Respondents.

-ooOoo-
2.

Appellant Big Star Builders, Inc. appeals following the trial court’s denial of its 

third petition for an order compelling arbitration and staying all proceedings. Appellant 

is seeking to force arbitration between itself and respondents Jose Cardenas and Elena 

Zarate Carrillo in lieu of the litigation respondents filed against appellant and several 

other companies who were involved in the installation of solar panels at respondents’ 

home. For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2021, respondents filed an action against appellant and several other companies, 

including Greensky, LLC, Equisolar, Inc., American Contractors Indemnity Company, 

and Wesco Insurance Company, alleging various causes of action related to what 

respondents contend was a botched sale and installation of solar panels at their home. 

According to respondents, they were approached by a salesperson, Noel Montoya, who 

was acting as an agent for appellant, Equisolar, Inc., and Greensky, LLC. Montoya made 

several claims regarding the proposed system, including that it would generate a specific 

amount of power, would eliminate respondents’ electricity bill, and that respondents 

would be reimbursed for any failure on the part of the system to produce the promised 

quantity of electricity. 

Respondents were charged and paid at least $10,000, allegedly before any work 

was commenced, yet found that the system installed failed to generate the proper amount 

of power and eliminate their electric bill. They did not receive reimbursement for the 

underperformance. Respondents alleged the work performed was eventually found to be 

substandard, that attempted repairs not only failed to fix the problems but further 

damaged their property, and that additional promises not kept by appellant and the other 

companies resulted in respondents being told by Greensky, LLC that they would be 

required to pay late charges for fees that were supposed to be covered by appellant.
3.

Respondents further allege that Equisolar, Inc. forged Cardenas’s signature on 

permit applications related to the work. And respondents note that while the negotiations 

were done in Spanish and appellant’s documents were provided in Spanish, additional 

documents provided by Greensky, LLC were in English.

In response to this litigation, appellant filed a motion to compel arbitration 

between itself and respondents. Appellant argued it had entered into a contract with 

respondents and that contract included an arbitration clause, which appellant requested be 

enforced. Appellant attached a copy of the contract, a translation into English, and a 

declaration from one Isaac Hernandez, who claimed to be the operations manager for 

appellant and who stated he was “familiar with all aspects of the Contract.” The court 

ultimately denied this first motion without prejudice, finding the purported contract was 

not properly authenticated, the translation did not meet requirements of the California 

Rules of Court, and that the parties should further meet and confer on the issue.

A short while later, appellant filed a second motion to compel arbitration. In that 

motion, appellant sought to correct the translation and authentication issues and noted 

that further meet and confer efforts were not successful. Appellant again requested the 

court compel arbitration between appellant and respondents. In support of the 

authentication claim, appellant submitted a new declaration from Hernandez, stating, “I 

executed the contract” and “swear that it is authentic.”1 This time, rather than claiming 

to be an employee of appellant, Hernandez claimed he was “Operations Manager of ... 

Equisolar, Inc.”2

1 Notably, neither Hernandez’s name nor his signature appear on the contract. Rather, the 

only name potentially associated with appellant is that of the salesperson, Montoya.

2 When this change was pointed out, appellant submitted a revised declaration stating 

Hernandez was “the Operations Manager of both ... Equisolar, Inc., and [appellant].”
4.

Respondents objected to the authentication efforts and the court again denied the 

motion to compel, granting their objections and holding the contract had not been 

authenticated.

Several months later, appellant filed a third motion to compel arbitration. This 

time, appellant relied on assertions that respondents not only entered into and signed the 

contract, but had affirmed the existence of the contract by referencing it in their 

complaint, along with another declaration from Hernandez to authenticate the contract. 

Appellant conceded that only Carrillo’s signature appeared on the purported contract but 

asserted she had signed “on behalf of both” her and Cardenas.

Hernandez’s declaration was more extensive than his prior ones. First, Hernandez 

stated his position was “Operations Manager of ... EQUISOLAR[,] INC.” Hernandez 

then claimed appellant was the principle and Equisolar, Inc., Greensky, LLC, and 

American Contractors Indemnity Company were agents of appellant in the business of 

solar panel installation and financing. Hernandez declared the relevant contract, which 

was attached in its original Spanish form, was “created by our employees,” in the regular 

course of business, at or near the time of the installation agreement. The contract was 

“the standard sales agreement used by” appellant and is presented “to all our solar panel 

customers.” Hernandez declared his “employee, Noel Montoya, followed all company 

protocols and procedures” when presenting the contract to Carrillo, but said nothing of 

discussions with Cardenas. Throughout, Hernandez made several statements asserting he 

was aware of the normal procedures for creating and presenting this type of contract, had 

personal knowledge of the contract generally, and had personal knowledge of the contract

and work done at respondents’ home.

Respondents again opposed the motion. They raised several arguments. First, 

respondents argued the court should not compel arbitration against non-signatories, 

identified as all parties other than Carrillo. Respondents alleged there was no evidence 

submitted that Carrillo acted as Cardenas’s agent and noted that the agreement could only 
5.

cover “disputes between [Carrillo] and [appellant].” Respondents then challenged the 

evidence seeking to authenticate the contract, noting that Hernandez lacked personal 

knowledge related to the contract because he was not an employee of appellant and 

therefore could not authenticate that the agreement the contract proffered was authentic 

or otherwise lay proper foundations for the introduction of appellant’s business records. 

Coupled with this argument, and submitted separately, were 10 objections to portions of 

Hernandez’s declaration. Next, respondents alleged the contract was unconscionable and 

thus unenforceable. Finally, respondents asserted enforcement was not proper under 

Code of Civil Procedure section 1281.2, subdivision (c),

3 based on the risk of conflicting 

rulings involving parties not bound by the arbitration agreement.

The trial court issued a tentative ruling and held a hearing at which the parties 

presented brief arguments. The court then denied appellant’s third motion to compel 

arbitration. In doing so, the court noted that the “motion remains deficient in that it is not 

supported by admissible evidence, as the purported arbitration agreement has not been 

properly authenticated.” Relatedly, the court sustained respondents’ objections to 

Hernandez’s declaration “on the grounds stated” and explained the “declaration is 

insufficient to authenticate the subject agreement.” Finally, the court added that, in 

addition to the evidentiary issues, “the Court finds that an order compelling arbitration in 

this instance would create the possibility of conflicting rulings on common factual and/or 

legal issues” because “the allegedly arbitrable claim arises out of the same transaction(s) 

as the non-arbitrable claims.” Thus, citing section 1281.2, subdivision (c) the court 

explained that even if an arbitration agreement existed, “the matter is not appropriate for 

arbitration under the circumstances.”

This appeal timely followed.

3 Undesignated statutory references are to the Code of Civil Procedure.
6.

DISCUSSION

Standard of Review and Applicable Law

“ ‘ “There is no uniform standard of review for evaluating an order denying a 

motion to compel arbitration. [Citation.] If the court’s order is based on a decision of 

fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the 

court’s denial rests solely on a decision of law, then a de novo standard of review is 

employed.” ’ ” (Chambers v. Crown Asset Management, LLC (2021) 71 Cal.App.5th 

583, 591 (Chambers).) “ ‘Trial court rulings on the admissibility of evidence ... are 

generally reviewed for abuse of discretion.’ ” (Ibid.)

“California statutes create a ‘summary proceeding’ for resolving petitions or 

motions to compel arbitration. [Citation.] ‘The petitioner bears the burden of proving the 

existence of a valid arbitration agreement by the preponderance of the evidence, and a

party opposing the petition bears the burden of proving by a preponderance of the 

evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the 

trial 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.’ ” (Chambers, supra, 71 Cal.App.5th at p. 590, first 

bracketed insertion added.)

“ ‘Thus, our Supreme Court has clearly stated that a court, before granting a 

petition to compel arbitration, must determine the factual issue of “the existence or 

validity of the arbitration agreement.” [Citation.] In this way, a court’s role, though 

limited, is critical. “There is indeed a strong policy in favor of enforcing agreements to 

arbitrate, but there is no policy compelling persons to accept arbitration of controversies 

which they have not agreed to arbitrate and which no statute has made arbitrable.” ’ ” 

(Chambers, supra, 71 Cal.App.5th at p. 590.)
7.

Appellant Has Waived Any Challenge to the Exclusion of Hernandez’s Declaration

The trial court’s first ground asserted for denying appellant’s third motion to 

compel arbitration was its conclusion that appellant had failed to properly prove that an 

arbitration clause existed in this case. As part of its ruling on that point, the trial court 

specifically sustained 10 objections raised by respondents that challenged Hernandez’s

declaration seeking to authenticate the purported contract that contained the alleged 

arbitration clause. On appeal, appellant makes no legally relevant mention of this aspect 

of the trial court’s ruling, despite directly quoting it in its fact section. Appellant’s 

conduct has affirmatively waived any assertion that the trial court wrongly excluded 

Hernandez’s declaration. (See Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 

1114 [“[Appellant’s] brief on appeal fails to identify the court’s evidentiary ruling as a 

distinct assignment of error, and there is no separate argument heading or analysis of the 

issue. That alone is grounds to deem the argument waived.”].)

Perhaps aware of this shortcoming, appellant argues from the position that there is 

no basis to reject its submission of the proffered arbitration clause because respondents 

have alleged the existence of the agreement in their complaint. But this argument proves 

nothing. Respondents’ complaint does not reference the arbitration clause nor any 

specific terms of the contract, other than to claim that some agreement exists, and 

respondents did not attach any documents to their complaint. Accordingly, while there is 

an admission that some agreement exists, there is no basis to conclude, based on the 

complaint alone, that the documents submitted by appellant are, in fact, representative of 

the agreement referenced by respondents in their complaint.

Appellant therefore needed more than an unsupported claim an arbitration 

agreement existed to compel arbitration. “ ‘ “Under ‘both federal and state law, the 

threshold question presented by a petition to compel arbitration is whether there is an 

agreement to arbitrate.’ ” ’ [Citations.] The threshold question requires a response 

because if such an agreement exists, then the court is statutorily required to order the 
8.

matter to arbitration” absent a statutory basis not to do so. (Fleming v. Oliphant 

Financial, LLC (2023) 88 Cal.App.5th 13, 19.) “ ‘To be sure, before referring a dispute 

to an arbitrator, the court determines whether a valid arbitration agreement exists.’ ” (Id.

at p. 20.) When the trial court excluded Hernandez’s declaration and found the proffered 

agreement lacked foundation, it did not error; there was no remaining evidence to prove 

that the agreement presented to the court was, in fact, the agreement appellant referred to.

Appellant Has Waived Any Challenge Under Section 1281.2, Subdivision (c)

The trial court’s order in this case rests upon a secondary ground, the court’s 

conclusion that even if an arbitration clause exists, the risk of conflicting rulings means 

the arbitration clause should not be enforced. Astoundingly, appellant does not mention 

this aspect of the court’s ruling in its opening or reply brief, nor does it ever discuss

section 1281.2, the provision relied upon by the trial court. Appellant has therefore 

waived any argument on this point. (Save Agoura Cornell Knoll v. City of Agoura Hills 

(2020) 46 Cal.App.5th 665, 704, fn. 14.) Moreover, appellant’s complete failure to 

dispute one of the two aspects underlying the trial court’s order is fatal to its appeal. (See 

Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125–126.)

Even if not waived, we see no error in the trial court’s ruling. Section 1281.2, 

subdivision (c), provides that “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: [¶] ... [¶] (c) A party to the arbitration agreement is also 

a party to a pending court action ... 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.” The statute further explains that if “the court determines 

that a party to the arbitration is also a party to litigation in a pending court action ... as set 

forth under subdivision (c), the court (1) may refuse to enforce the arbitration agreement 

and may order intervention or joinder of all parties in a single action.” (§ 1281.2, 

subd. (d).) The statute has long been held to permit a court to refuse to order arbitration, 
9.

even when a valid arbitration provision exists and even when proceedings are subject to 

the Federal Arbitration Act (9 U.S.C.S. § 1 et seq.). (See Cronus Investments, Inc. v. 

Concierge Services (2005) 35 Cal.4th 376, 393 [noting § 1281.2, subd. (c), “is an 

evenhanded law that allows the trial court to stay arbitration proceedings while the 

concurrent lawsuit proceeds,” which does not conflict with the Federal Arbitration Act].)

In this case, the arbitration agreement submitted to the court limits arbitration to

“disputes between [Carrillo] and [appellant]” and specifically notes this “means that the 

arbitration shall not address disputes that involve other persons with disputes similar to 

the [d]isputes between [Carrillo] and [appellant].” Given this language, we see no error 

in the trial court’s determination that the existence of multiple subcontractors or related 

parties in the installation of a single solar project could result in inconsistent rulings on 

issues of fact or law if claims related to that installation were sent to arbitration with 

respect to appellant only. Under section 1281.2, the trial court could therefore refuse to 

compel arbitration even if it found a sufficient foundation for the arbitration clause and 

assumed it was applicable.

DISPOSITION

The order denying appellant’s third petition for an order compelling arbitration 

and staying all proceedings is affirmed. Costs are awarded to respondents.

HILL, P. J.

WE CONCUR:

LEVY, J.

MEEHAN, J.