Filed 5/15/23 Orloff v. Weiss CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LISA ORLOFF, Individually and as 

Special Administrator, etc.,

Plaintiff and Respondent,

v.

JOAN WEISS,

Defendant and Appellant.

 D080535

 (Super. Ct. No. 37-2021-

00020569-CU-NP-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Ronald F. Frazier, Judge. Reversed and remanded.

Wood, Smith, Henning & Berman LLP, Keith E. Smith and Tracy M. 

Lewis for Defendant and Appellant.

The Nalu Law Firm and A. Michael Nalu; Browning Hocker and Robert 

N. Hocker for Plaintiff and Respondent.

Joan Weiss appeals from an order denying her motion to compel 

arbitration of the causes of action asserted against her in the litigation filed 
2

by Lisa Orloff (Orloff). (Code Civ. Proc., § 1281.2.)1 The litigation arises

from Weiss’s role as a certified financial planner and investment advisor for 

Orloff’s late mother and father, Marshall and Ann Orloff (Marshall and 

Ann).2

We conclude the trial court erred in ruling Weiss failed to establish the 

arbitration provisions in the agreements Marshall and Ann entered into with 

Lincoln Financial Advisors Corporation (Lincoln Financial) were applicable to 

claims asserted against her by Orloff. Specifically, Weiss is entitled to rely 

upon the arbitration provisions as an agent of Lincoln Financial, and Orloff is 

subject to the arbitration provisions to the extent she sues in her capacity as 

the special administrator of her father’s estate. Moreover, with one 

exception, most of the claims against Weiss fall within the scope of the 

relevant arbitration provisions because they relate to or concern Marshall 

and Ann’s accounts with Lincoln Financial. We therefore reverse the order 

denying the motion to compel arbitration, and we remand for the trial court 

to consider an issue it expressly did not reach, namely, whether arbitration 

should be denied based on the third party litigant exception set forth in 

section 1281.2, subdivision (c).

I.

FACTUAL AND PROCEDURAL BACKGROUND

On May 7, 2021, in her capacity as (1) an individual, (2) a beneficiary of 

two trusts created by Marshall and Ann, and (3) the special administrator of 

Marshall’s estate, Orloff filed a lawsuit against the following defendants: 

1 Unless otherwise indicated, all further statutory references are to the 

Code of Civil Procedure. 

2 Because of overlapping surnames and for the sake of clarity, we refer to 

certain individuals by their first names. We intend no disrespect by doing so.
3

(1) Weiss; (2) Weiss’s husband, Kenneth Weiss (Kenneth); and (3) Kenneth’s 

professional corporation. 

Orloff alleged that she is one of six children of Marshall and Ann, both 

of whom were successful physicians. Marshall died in 2018, at the age of 91, 

and Ann died in 2019, at the age of 93. During their lifetimes, Marshall and 

Ann created the Orloff Family Trust Dated October 3, 1991 (“the Family 

Trust”) and the Orloff Irrevocable Trust Number One Dated October 5, 2001 

(collectively “the Trusts”), designating their children as the beneficiaries of 

the Trusts. 

The complaint alleged that Weiss “is a Certified Financial Planner and 

FINRA licensed registered representative, holding Series 7 and Series 63 

securities licenses.”3 Kenneth is a certified public accountant. According to 

the complaint, “for many years” Weiss “served as Marshall’s and Ann’s 

3 To understand this allegation regarding Weiss’s professional 

qualifications, some context is required. FINRA refers to the Financial 

Industry Regulatory Authority, which is a “ ‘ “self-regulatory organization” ’ 

as defined in the Securities Exchange Act of 1934 that oversees the conduct of 

securities brokers and brokerage firms.” (Lickiss v. Financial Industry 

Regulatory Authority (2012) 208 Cal.App.4th 1125, 1128.) As explained by 

one treatise, “[I]n order to be what we commonly think of as a stock broker, a 

customer representative, or an account executive, an individual must be 

registered with FINRA as a registered representative. In order to qualify as 

a registered representative, an individual must have a sponsoring broker 

dealer. A registered representative is not permitted to engage in transactions 

other than for the sponsoring firm without the consent of the firm. [¶] 

Registered representative status requires passing FINRA’s Series 7 and 

Series 63 securities licensing exams. These exams are administered by 

FINRA. The Series 7 license allows the registered representative to buy and 

sell stocks, mutual funds, options, municipal securities and some variable 

contracts for their clients. The Series 63 license allows the representative to 

trade variable annuities and unit investment trusts.” (5 Hazen, Treatise on

the Law of Securities Reg. (7th ed. 2020) FINRA Reg. of Associated Persons, 

§ 14:67, fns. omitted.)
4

financial advisor,” and Kenneth “served as Marshall’s and Ann’s tax advisor 

and preparer.” The complaint alleged that, at some point, “[Weiss] and 

Kenneth replaced Marshall’s and Ann’s children as successor trustee” of the 

Trusts.4 Against both Weiss and Kenneth, the complaint alleged breach of 

fiduciary duty, professional negligence and financial elder abuse. (Welf. & 

Inst. Code, § 15610.30.)5

The complaint set forth a series of alleged wrongful acts by both Weiss 

and Kenneth. With respect to Weiss, the complaint alleged that she 

(1) advised Marshall and Ann to purchase investments and insurance

products that were inappropriate for them with the goal of maximizing her 

fees; (2) charged exorbitant fees; (3) convinced Marshall and Ann to make 

Kenneth or alternatively herself the successor trustee for the Trusts for the 

purpose of obtaining additional fees; and (4) failed to properly process the 

beneficiary designation paperwork for annuities after Marshall’s death, 

resulting in an unnecessary probate action. With respect to Kenneth, the 

complaint alleged that he (1) improperly advised and prepared Marshall’s 

and Ann’s taxes, resulting in multiple audits; (2) overcharged for trustee and 

accounting services; (3) as trustee, continued to pay inflated fees to Weiss for 

4 The complaint alleged that “[t]he purpose and intent of [Weiss] and 

Kenneth in making this change to insert themselves as successor trustee was 

to obtain fees and payments from the Estate after Marshall and Ann died.” 

(Underscoring omitted.) Further, “[b]y inserting themselves as successor 

trustee, [Weiss] and Kenneth guaranteed that upon Marshall’s death the 

children could not remove [Weiss] as [certified financial planner] and 

Kenneth as the Trusts’ accountant.” 

5 The causes of action for professional negligence and financial elder 

abuse were asserted against both Kenneth and his professional corporation. 
5

investment advice; and (4) as trustee, improperly accounted for trust assets 

and failed to timely distribute trust assets and fund certain subtrusts.6

On June 22, 2021, Weiss filed a motion to compel arbitration of all of 

the causes of action alleged against her. (§ 1281.2.) As Weiss stated in her 

declaration in support of the motion, she has been a registered representative 

of Lincoln Financial since approximately 1988, and in that capacity, she 

provides clients with financial planning and investment advisory services. 

Weiss explained that she served as an investment advisor to Marshall and 

6 On August 31, 2021, while the motion to compel arbitration was 

pending, but before Orloff filed an opposition thereto, Orloff amended the 

complaint to add causes of action alleging that Weiss aided and abetted 

Kenneth’s breach of fiduciary duty, and that Kenneth aided and abetted 

Weiss’s breach of fiduciary duty. Strangely, however, the first amended 

complaint also omitted the cause of action for breach of fiduciary duty against 

Kenneth. Although the record reflects no objection by Weiss in the trial court 

to the filing of the first amended complaint, in her appellate reply brief, 

Weiss argues that we should not consider the allegations of that complaint in 

determining whether the trial court properly denied the motion to compel 

arbitration because “[t]here is no evidence in the record establishing [Orloff] 

had authority to file a [first amended complaint], given [Weiss] had already 

appeared.” The argument is forfeited because it was not raised below. (See 

Leshane v. Tracy VW, Inc. (2022) 78 Cal.App.5th 159, 166, fn. 2.) It also lacks 

substantive merit. Section 472, subdivision (a) provides that “[a] party may 

amend its pleading once without leave of the court at any time before the 

answer, demurrer, or motion to strike is filed, or after a demurrer or motion to 

strike is filed but before the demurrer or motion to strike is heard if the 

amended pleading is filed and served no later than the date for filing an 

opposition to the demurrer or motion to strike.” (Italics added.) Under the 

plain text of this provision, the filing of a motion to compel arbitration does 

not preclude the filing of an amended pleading because such a filing is not an 

answer, demurrer, or motion to strike. Moreover, even if a motion to compel 

arbitration was somehow equivalent to a demurrer or a motion to strike 

within the meaning of section 472, subdivision (a), the first amended 

complaint here would still be proper because it was filed prior to the date for 

filing an opposition. 
6

Ann from 2001 until their deaths. Weiss’s declaration attached a series of 

customer agreements between Lincoln Financial and Marshall and Ann, both 

individually and on behalf of the Family Trust. Several of those agreements 

included arbitration provisions. Weiss signed the agreements as a registered 

representative of Lincoln Financial, certifying that she was a registered 

representative on the relevant account and that the account holder’s 

identification documents had been verified.7

Two different arbitration provisions appear in the agreements. First, 

in three account holder agreements entered into by Marshall and Ann with 

Lincoln Financial in 2006 and 2008, the arbitration provision states: “All 

controversies that may arise between us (including, but not limited to 

controversies concerning any [a]ccount, order or transaction, or the 

continuation, performance, interpretation or breach of this or any other 

agreement between us, whether entered into or arising before, on or after the 

date this [a]ccount is opened) shall be determined by arbitration . . . .”8 

7 For three of the agreements, the pages containing Weiss’s signature 

were not submitted in their entirety, so that only some of each page can be 

read. However, Weiss’s declaration confirms that she signed those 

documents as a registered representative of Lincoln Financial. We may rely 

on Weiss’s declaration to establish that she signed the agreements as a 

registered representative of Lincoln Financial. (See Sprunk v. Prisma LLC

(2017) 14 Cal.App.5th 785, 793 [because Rule 3.1330 of the California Rules 

of Court permit a party moving to compel arbitration to state the terms of the 

relevant agreement verbatim rather than to attach a copy of the agreement, 

it was sufficient for the moving party to attach the two relevant arbitration 

provisions and to state that all class members had signed at least one of 

them].)

8 In the 2006 agreements, the arbitration is to be “in accordance with the 

rules then prevailing of the New York Stock Exchange, Inc., or the NASD, 

Inc., as I may designate.” (Bolding omitted.) In the 2008 agreement, the 
7

(Bolding omitted.) Second, in 2012, Marshall and Ann individually, and on 

behalf of the Family Trust, entered into three “Client Profile” agreements, 

each of which contained an arbitration provision that applied to “all accounts 

established in conjunction with this Client Profile.” The arbitration provision 

in each of those three agreements states, “It is agreed that any controversy 

arising out of or relating to the accounts established herewith, shall be 

submitted to arbitration in accordance with the rules adopted by the 

Financial Industry Regulatory Authority, Inc. Dispute Resolution Board.” 

(Bolding omitted.) 

Weiss’s motion argued that the causes of action against her were 

covered by the arbitration provisions she attached to her declaration because 

“[Marshall and Ann] agreed to arbitrate ‘any controversy’ arising out of or 

relating to the accounts established by the parties. Specifically, [Orloff’s] 

causes of action for breach of fiduciary [duty] and professional negligence, 

relate to alleged breaches of the broker/dealer and financial advisor 

relationships established among the parties. Similarly, [Orloff’s] cause of 

action for financial elder abuse relates to the fees charged for financial 

planning services and in connection with transactions and investments 

executed for [Marshall and Ann].” 

In opposition, Orloff argued, among other things, that neither she (as 

the daughter of Marshall and Ann) nor Weiss (in her individual capacity)

were parties to the agreements that contain the arbitration provisions. With 

respect to Weiss, Orloff argued that “[Weiss] is not a party to these 

[arbitration] agreements, and she admits that she signed them only as a 

representative of Lincoln Financial.” Orloff contended that, therefore, the 

arbitration is to be “in accordance with the rules then prevailing of the 

NASD, Inc. or any successor.” (Bolding omitted.)
8

trial court “should deny the motion to compel arbitration on the basis that 

there is no arbitration clause to enforce between these parties.” Orloff also 

argued that because of the claims against Kenneth, the motion to compel 

arbitration should be denied pursuant to section 1281.2, subdivision (c), 

which allows the trial court to refuse to compel arbitration if “[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.” (§ 1281.2, subd. (c).)

In Weiss’s reply, under a heading stating that “[Weiss] is a signatory 

and party to the arbitration agreement as an agent of Lincoln Financial” 

(bolding and capitalization omitted, italics added), Weiss cited case law for 

the proposition that “[w]here a defendant is not a signatory to an arbitration 

provision, but was acting as an agent for the corporation, it is entitled to the 

benefits of the arbitration provision.” (Italics added.) Among other things, 

Weiss also argued that the claims against Kenneth did not support the trial 

court’s exercise of its discretion to deny arbitration under section 1281.2, 

subdivision (c). 

The trial court denied the motion to compel arbitration. It ruled that 

Weiss had established neither that she was entitled to enforce the arbitration 

provisions, nor that Orloff was subject to them. In addition, the trial court 

stated that it did “not appear” that Orloff’s “tort-based claims for breach of 

fiduciary duty, professional negligence, and elder abuse” were within the 

scope of the relevant arbitration provisions. The trial court expressly did not 

reach the issue of whether the claims against Kenneth would justify the 

denial of the motion to compel arbitration pursuant to section 1281.2, 

subdivision (c).
9

Weiss appeals from the order denying her motion to compel arbitration.

(§ 1294, subd. (a) [appealability of an order denying a petition to compel 

arbitration].)

II.

DISCUSSION

A. Applicable Legal Principles

In light of the grounds on which the trial court relied in denying the 

motion to compel arbitration, two fundamental issues arise for our review on 

appeal. First, we must consider whether, as Weiss contends, arbitration 

should be compelled because both she and Orloff are subject to the 

arbitration provisions in the agreements that Marshall and Ann entered into 

with Lincoln Financial. Second, in the event we conclude that Orloff and 

Weiss are subject to the arbitration provisions, we must consider the extent 

to which Orloff’s claims against Weiss fall within the scope of those 

provisions. 

Our review of the order denying the motion to compel arbitration is 

guided by well-settled principles. “ ‘A party to an arbitration agreement may 

petition the court to compel other parties to arbitrate a dispute that is 

covered by their agreement.’ [Citations.] ‘California has a strong public 

policy in favor of arbitration as an expeditious and cost-effective way of 

resolving disputes.’ [Citations.] ‘Even so, parties can only be compelled to 

arbitrate when they have agreed to do so. [Citation.] “Arbitration . . . is a 

matter of consent, not coercion.” ’ [Citations.] [¶] ‘Whether an agreement to 

arbitrate exists is a threshold issue of contract formation and state contract 

law.’ ” (Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 

31 Cal.App.5th 840, 858-859 (Cohen).) 
10

With respect to the issue of whether Orloff and Weiss are bound by the 

arbitration provisions in the agreements that Marshall and Ann entered into 

with Lincoln Financial, “ ‘[t]he party seeking to compel arbitration bears the 

burden of proving the existence of a valid arbitration agreement.’ [Citations.] 

[¶] ‘ “Whether an arbitration agreement is binding on a third party (e.g., a 

nonsignatory) is a question of law subject to de novo review.” ’ ” (Cohen, 

supra, 31 Cal.App.5th at p. 859.)

In considering the extent to which Orloff’s claims against Weiss fall 

within the scope of any applicable arbitration provisions, “[o]nce the 

existence of a valid arbitration clause has been established, ‘[t]he burden is 

on “the party opposing arbitration to demonstrate that [the] arbitration 

clause cannot be interpreted to require arbitration of the dispute.” ’ ”

(McIsaac v. Foremost Ins. Co. Grand Rapids, Michigan (2021) 64 Cal.App.5th 

418, 422.) Moreover, “the ‘question of arbitrability,’ is ‘an issue for judicial 

determination [u]nless the parties clearly and unmistakably provide 

otherwise.’ ” (Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 83; 

see also Nelson v. Dual Diagnosis Treatment Center, Inc. (2022) 

77 Cal.App.5th 643, 654 (Nelson) [“ ‘Under California law, it is presumed the 

judge will decide arbitrability, unless there is clear and unmistakable 

evidence the parties intended the arbitrator to decide arbitrability.’ ”].) Here, 

the issue of arbitrability is for the court to decide because the arbitration 

provisions do not clearly and unmistakably show that the parties intended 

the arbitrator to decide that issue. On appeal, because the parties do not 

point to any conflicting extrinsic evidence, we apply a de novo standard of 

review when addressing the issue of arbitrability. (Ahern v. Asset 

Management Consultants, Inc. (2022) 74 Cal.App.5th 675, 687 [“ ‘ “Whether 

an arbitration agreement applies to a controversy is a question of law to 
11

which the appellate court applies its independent judgment where no 

conflicting extrinsic evidence in aid of the interpretation was introduced in 

the trial court.” ’ ”].) 

Weiss argues at length that the Federal Arbitration Act (FAA; 9 U.S.C. 

§ 1 et seq.) applies to Orloff’s claims against her. However, we need, and do 

not, consider that issue to resolve this appeal. The threshold issue of 

whether the parties entered into an agreement to arbitrate “is answered by 

applying state contract law even when it is alleged that the agreement is 

covered by the FAA.” (Cheng-Canindin v. Renaissance Hotel Associates

(1996) 50 Cal.App.4th 676, 683.) Similarly, “ ‘[w]hen deciding whether the 

parties agreed to arbitrate a certain matter (including arbitrability), courts 

generally . . . should apply ordinary state-law principles that govern the 

formation of contracts.” (Nelson, supra, 77 Cal.App.5th at p. 654.) “Under 

both California and federal law, arbitration is strongly favored and any 

doubts concerning the scope of arbitrable issues should be resolved in favor of 

arbitration.” (Balandran v. Labor Ready, Inc. (2004) 124 Cal.App.4th 1522, 

1527.)

B. The Trial Court Erred in Concluding that Weiss and Orloff Were Not 

Subject to the Arbitration Provisions in the Agreements That Marshall 

and Ann Entered Into With Lincoln Financial

We now turn to the issue of whether Weiss met her burden, as the 

moving party, to establish that both she and Orloff are subject to the 

arbitration provisions in the agreements that Marshall and Ann entered into 

with Lincoln Financial.
12

1. Orloff Is Subject to the Arbitration Provisions to the Extent She Is

Suing as the Special Administrator of Marshall’s Estate

We first consider whether Orloff is subject to the relevant arbitration 

provisions.9 There is no dispute that Orloff was not a party to the 

agreements between her parents and Lincoln Financial. “Because arbitration 

is a matter of contract, generally ‘ “one must be a party to an arbitration 

agreement to be bound by it or invoke it.” ’ ” (DMS Services, LLC v. Superior 

Court (2012) 205 Cal.App.4th 1346, 1352 (DMS).) However, there are 

exceptions to the general rule. (Id. at p. 1353.) These exceptions include 

“ ‘ “ ‘(a) incorporation by reference; (b) assumption; (c) agency; (d) veilpiercing or alter ego; (e) estoppel; and (f) third-party beneficiary.’ ” ’ ” (Cohen, 

supra, 31 Cal.App.5th at p. 859.) In Thomas v. Westlake (2012) 

204 Cal.App.4th 605 (Thomas), we discussed another exception that is 

relevant here. Specifically, “[a] decedent’s successor in interest steps into the 

decedent’s position as to a particular action. [Citation.] ‘Thus, where [a 

decedent’s successor in interest] asserts a claim on behalf of the estate, he or 

she must also abide by the terms of any valid agreement, including an 

arbitration agreement, entered into by the decedent.’ ” (Id. at p. 613, fn. 5.)

Here, Orloff specifically identified three different capacities in which 

she filed suit against Weiss: (1) in her individual capacity; (2) as a 

beneficiary of the Trusts; and (3) as the special administrator of Marshall’s 

estate. With respect to the claims brought in her capacity as the special 

9 We note that, in the trial court, Orloff placed heavy emphasis on the 

argument that she was not subject to the arbitration provisions between her 

parents and Lincoln Financial. The trial court apparently found merit to her 

argument. On appeal, however, although Weiss argues the issue of whether 

Orloff is subject to the arbitration provisions, Orloff does not. As Orloff 

simply fails to reach the issue rather than expressly conceding that she is 

subject to the arbitration provisions, we will proceed to analyze the issue.
13

administrator of Marshall’s estate, no further analysis is needed to conclude 

that Orloff is subject to the arbitration provisions that Marshall entered into 

with Lincoln Financial. In her capacity as special administrator of 

Marshall’s estate, Orloff is subject to the arbitration provisions that Marshall 

agreed to because she has brought suit as Marshall’s successor in interest, 

asserting claims on behalf of Marshall’s estate. (Thomas, supra, 

204 Cal.App.4th at p. 613, fn. 5.) 

However, with respect to the claims that Orloff brings in her individual 

capacity and as a beneficiary of the Trusts, Weiss has failed to meet her 

burden as the moving party to identify any viable theory under which Orloff 

could be bound by the arbitration provisions that her parents entered into 

with Lincoln Financial. Contending that “a decedent may bind his/her 

heirs[’] claims to resolution via arbitration,” Weiss cites Ruiz v. Podolsky

(2010) 50 Cal.4th 838. However, Ruiz is inapposite because it applied a 

particular statute, section 1295, that specifically governs the arbitration of 

medical malpractice claims. Ruiz concluded that an heir who brings a 

medical malpractice claim is bound by an arbitration clause signed by the 

decedent that purports to bind the decedent’s heirs. (Ruiz, at p. 849 [holding 

that “section 1295, construed in light of its purpose, is designed to permit 

patients who sign arbitration agreements to bind their heirs in wrongful 

death actions”].) This action does not involve medical malpractice. Moreover, 

Ruiz does not support Weiss’s argument for a second reason. In Ruiz the 

relevant agreement expressly stated that the arbitration provision applied to 

the “spouse or heirs of the patient and any children.” (Id. at pp. 841-842.) 

The issue was whether the decedent had the authority to expressly bind heirs 

in that manner. (Ibid.) Here, in contrast, the relevant arbitration provisions
14

contain no language purporting to bind Marshall and Ann’s heirs to any

agreement to arbitrate claims with Lincoln Financial. 

2. Weiss May Invoke the Arbitration Provisions as an Agent of 

Lincoln Financial

We next consider whether Weiss is entitled to invoke the arbitration 

provisions in the agreements she signed as a registered representative of 

Lincoln Financial. Weiss contends that she is entitled to invoke those 

provisions because she acted as an agent of Lincoln Financial in her dealings 

with Marshall and Ann.

At the threshold, we must address Orloff’s contention that Weiss has 

forfeited her ability to argue, in the context of this appeal, that she is entitled

to invoke the arbitration provisions because she acted as an agent of Lincoln 

Financial. Orloff contends that Weiss did not make the agency argument in 

the trial court, and thus she may not make it for the first time on appeal. We 

reject Orloff’s argument because we disagree with Orloff’s characterization of 

the record. Although Weiss’s briefing in the trial court on the issue of agency 

was not extensive or well developed, our review of the record shows that 

Weiss did raise the issue of agency. Specifically, Weiss’s reply memorandum 

contained a heading stating that “[Weiss] is a signatory and party to the 

arbitration agreement as an agent of Lincoln Financial” (bolding and 

capitalization omitted, italics added). Under that heading, Weiss cited case 

law for the proposition that “[w]here a defendant is not a signatory to an 

arbitration provision, but was acting as an agent for the corporation, it is 

entitled to the benefits of the arbitration provision.” (Italics added.) The 

issue has accordingly been preserved for appeal.

Turning to the merits, we note as an initial matter that even though 

Weiss’s signature appears on the agreements that Marshall and Ann entered 

into with Lincoln Financial, she is not a party to those agreements. Instead, 
15

she signed as an agent of Lincoln Financial. (Ronay Family Limited 

Partnership v. Tweed (2013) 216 Cal.App.4th 830, 837 (Ronay) [the financial 

advisor who signed an account agreement as a “registered representative” of 

a broker-dealer was not a party to the agreement between the broker-dealer 

and the clients of the registered representative, but rather signed as an agent 

of the broker-dealer].) Thus, Weiss may not invoke the arbitration provisions 

in those agreements unless she can establish an exception to the general rule 

that only a party to an arbitration agreement may enforce it. (DMS, supra, 

205 Cal.App.4th at p. 1353.)

Weiss relies on the exception available to someone who is not a party to 

an agreement but who is an agent of one of the signatories. “California law 

permits a nonsignatory defendant to compel a signatory plaintiff to arbitrate 

where there is a connection between the claims alleged against the 

nonsignatory and its agency relationship with a signatory. . . . A connection

between the causes of action alleged against the nonsignatory and that 

party’s agency relationship to a signatory makes it equitable to allow the 

nonsignatory to enforce the arbitration provision against a signatory 

plaintiff.” (Cohen, supra, 31 Cal.App.5th at pp. 863-864.) Based on that 

exception, this court has held that a registered representative is an agent of 

its sponsoring broker-dealer with respect to the investment advisory services 

the registered representative provides to clients. (Ronay, supra, 

216 Cal.App.4th at p. 838.) That agency relationship entitles the registered 

representative to invoke the arbitration provisions in an agreement between 

the registered representative’s clients and the registered representative’s 

broker-dealer. (Ibid.) Other authorities are in accord. (See, e.g., Pritzker v. 

Merrill Lynch, Pierce, Fenner & Smith, Inc. (3d Cir. 1993) 7 F.3d 1110, 1121-

1122 [a financial consultant employed by a brokerage firm was entitled to 
16

invoke the arbitration provision in an agreement between the brokerage firm

and the financial consultant’s client]; Letizia v. Prudential Bache Securities,

Inc. (9th Cir. 1986) 802 F.2d 1185, 1188 [an account executive of a brokerage 

firm could invoke the arbitration provision in the customer agreement 

between the brokerage firm and the plaintiff when plaintiff alleged that the 

account executive acted improperly with respect to investment services]; 

Berman v. Dean Witter & Co., Inc. (1975) 44 Cal.App.3d 999, 1001 [an agent 

of a securities broker who handled the transaction made to the plaintiff’s 

account was covered by the arbitration provision in the customer agreement 

between the plaintiff and the securities broker].)

Here, it is undisputed that Weiss was a registered representative of 

Lincoln Financial, and in that capacity she acted as an investment advisor to 

Marshall and Ann. Accordingly, Weiss was an agent of Lincoln Financial in 

her dealings with Marshall and Ann, and she is entitled to invoke the 

arbitration provisions with respect to any claims against her that are 

connected to the investment advisory services she provided to Marshall and 

Ann through her role as a registered representative of Lincoln Financial.

(Cohen, supra, 31 Cal.App.5th at pp. 863-864 [requiring “a connection

between the claims alleged against the nonsignatory and its agency 

relationship with a signatory” (italics added)].) 

In sum, we conclude that the trial court erred in denying the motion to 

compel arbitration on the ground that neither Orloff or Weiss were subject to 

the arbitration provisions in the agreements that Marshall and Ann entered 

into with Lincoln Financial. The trial court should have concluded that 

Weiss met her burden to establish that (1) Orloff is subject to the arbitration 

provisions for those claims brought in her capacity as the special 

administrator of Marshall’s estate; and (2) Weiss is subject to the arbitration 
17

provisions due to her role as an agent of Lincoln Financial to the extent the 

claims against her are connected to the services she provided to Marshall and 

Ann as an agent of Lincoln Financial. 

C. Most, but Not All, of the Claims Alleged Against Weiss Fall Within the 

Scope of the Arbitration Provisions

Having concluded that both Weiss (as an agent of Lincoln Financial) 

and Orloff (in her capacity as special administrator of Marshall’s estate) are 

subject to the arbitration provisions in the agreements Marshall and Ann 

entered into with Lincoln Financial, we must consider whether Orloff’s claims 

against Weiss in this action fall within the scope of those arbitration 

provisions. 

As we have described, the 2006 and 2008 arbitration provisions state 

that “[a]ll controversies that may arise between us (including, but not limited 

to controversies concerning any [a]ccount, order or transaction, or the 

continuation, performance, interpretation or breach of this or any other 

agreement between us, whether entered into or arising before, on or after the 

date this [a]ccount is opened) shall be determined by arbitration . . . .”

(Italics added; bolding omitted.) The 2012 arbitration provisions state that 

“any controversy arising out of or relating to the accounts established 

herewith, shall be submitted to arbitration . . . .” (Italics added; bolding 

omitted.) Arbitration provisions, such as these, that refer to claims 

“concerning” or “arising out of or relating to” the accounts are typically 

described as “broad” provisions. (See Johnson v. Greenelsh (2009) 47 Cal.4th 

598, 601, fn. 3 [arbitration provision “applicable to ‘[a]ny and all disputes’

between trustees or beneficiaries, ‘concerning any property owned by any 

trust(s) or the operation of any trust created herein’ ”was a “broad”

provision]; Khalatian v. Prime Time Shuttle, Inc. (2015) 237 Cal.App.4th 651, 

659 [“The language ‘arising out of or relating to’ as used in the parties’
18

arbitration provision is generally considered a broad provision.”].) “ ‘It has 

long been the rule in California that a broadly worded arbitration clause . . .

may extend to tort claims that may arise under or from the contractual 

relationship. “There is no requirement that the cause of action arising out of 

a contractual dispute must be itself contractual. At most, the requirement is 

that the dispute must arise out of contract.” ’ ” (Rice v. Downs (2016) 

248 Cal.App.4th 175, 186, first italics added.)10 

Weiss contends that “all of the causes of action pled against [Weiss] fall 

within the scope of the Arbitration Provisions because they [all] stem from 

[Weiss’s] alleged mismanagement of [Marshall and Ann’s] Lincoln [Financial] 

accounts.”11 On their face, the broad arbitration provisions at issue here 

10 Because the arbitration provisions at issue here are broadly worded 

provisions, the trial court erred in ruling that Orloff’s “tort-based claims” 

were not within the scope of the provisions. Notably, Orloff did not advocate 

in the trial court for such a rule, and she does not do so on appeal.

11 At certain points in Weiss’s appellate briefing, Weiss fails to 

distinguish the claims that Orloff asserts against Weiss from the claims that 

Orloff asserts against Kenneth. For example, Weiss states in the 

introduction to her opening appellate brief that “all of the claims set forth in 

the Complaint stem from the Lincoln [Financial] accounts” and are therefore 

subject to arbitration. (Italics added.) Similarly, the argument heading in 

her opening appellate brief states that “[t]he arbitration provision 

encompasses all claims asserted in [Orloff’s] complaint.” (Initial 

capitalization and underscoring omitted.) If, by making such statements, 

Weiss intends to assert that Orloff’s claims against Kenneth are subject to the 

arbitration provisions in the agreements that Marshall and Ann entered into 

with Lincoln Financial, Weiss has not set forth any support for that position. 

The complaint makes clear that the claims against Kenneth are based 

primarily on his services as Marshall and Ann’s accountant and as trustee for 

the Trusts. Weiss has not explained how the arbitration provisions that 

Marshall and Ann agreed to with Lincoln Financial might cover Kenneth’s 

provision of accounting and trustee services. Specifically, Kenneth does not 
19

cover all claims relating to or concerning Marshall and Ann’s accounts with 

Lincoln Financial. Orloff does not dispute that her claims against Weiss fall 

within the scope of the relevant arbitration provisions to the extent those 

claims are connected to Weiss’s actions as the registered representative for the 

Lincoln Financial accounts. However, Orloff argues that not all of her claims 

against Weiss relate to Weiss’s role at Lincoln Financial. 

Specifically, Orloff points to her claim that Weiss aided and abetted 

Kenneth’s breach of his own fiduciary duty as trustee of the Trusts. In this 

regard, the first amended complaint alleges that “[Weiss] knew of Kenneth’s 

misconduct and made a conscious decision to participate and assist in 

Kenneth’s tortious activity.” Orloff argues that this claim against Weiss does

not relate to or concern Weiss’s management of Marshall and Ann’s Lincoln 

Financial accounts, and thus it is not within the scope of the relevant 

arbitration provisions. Weiss’s only response to this argument is that the 

trial court should not have allowed Orloff to file the first amended complaint 

in which the allegation appears. However, as we have explained, Weiss’s 

belated challenge to the filing of the first amended complaint lacks merit.

(See fn. 6, ante.) 

We perceive no basis on which to conclude that Weiss could have been 

acting within the scope of her agency as a registered representative of 

Lincoln Financial when she allegedly aided and abetted Kenneth in 

breaching his own fiduciary duty. Accordingly, we conclude that Orloff may 

not be ordered to arbitrate the claim that Weiss aided and abetted Kenneth’s 

breach of fiduciary duty. However, as Orloff does not dispute that the 

appear to have been an agent of Lincoln Financial, and his accounting and 

trustee services do not appear to have concerned or related to any Lincoln 

Financial accounts.
20

remainder of the claims against Weiss concern or relate to Marshall and 

Ann’s accounts with Lincoln Financial, we conclude that those claims fall 

within the scope of the relevant arbitration provisions. 

D. Remand Is Required For the Trial Court to Consider Whether to Refuse 

to Compel Arbitration Based on Section 1281.2, Subdivision (c)

One last issue remains for us to consider. In opposition to the motion 

to compel arbitration, Orloff argued that even if the trial court determined 

that there were arbitrable issues raised in her lawsuit against Weiss, because 

of the pending claims against Kenneth, the motion to compel arbitration 

should be denied pursuant to section 1281.2, subdivision (c). The trial court 

expressly declined to reach the issue. On appeal, Orloff contends that we 

should apply section 1281.2, subdivision (c) to affirm the trial court’s order 

denying the motion to compel arbitration. In the alternative, Orloff argues 

that we should remand for the trial court to consider whether to deny the 

motion to compel pursuant to section 1281.2, subdivision (c).12

“Under section 1281.2[, subdivision] (c), a court may stay or refuse to 

compel arbitration of all or part of an arbitrable controversy when: (1) ‘[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 (2) ‘there is a possibility of conflicting rulings on a 

common issue of law or fact.’ (§ 1281.2[, subd.] (c).) For purposes of the 

statute, a third party is one who is neither bound by nor entitled to enforce 

the arbitration agreement. [Citation.] Section 1281.2[, subdivision] (c) 

‘ “addresses the peculiar situation that arises when a controversy also affects 

claims by or against other parties not bound by the arbitration agreement.” ’ ” 

12 Although Orloff raised the issue of section 1281.2, subdivision (c) in her 

respondent’s brief, Weiss neglected to address the issue in her reply brief.
21

(Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 674, 679-680

(Daniels).) Orloff argues that her claims against Kenneth meet the 

requirements for the application of section 1281.2, subdivision (c) because at 

least some of them concern the same transactions as her claims against 

Weiss, giving rise to the possibility of inconsistent rulings. 

The question of whether to deny arbitration pursuant to section 1281.2, 

subdivision (c) is a matter committed, in the first instance, to the discretion of 

the trial court, with our role as an appellate court limited to determining 

whether the trial court has abused its discretion. (Daniels, supra, 

212 Cal.App.4th at p. 680 [“the ultimate determination whether to stay or 

deny arbitration based on the possibility of conflicting rulings on common 

questions of law or fact is reviewed for an abuse of discretion”].) Therefore, 

because the trial court has not yet addressed Orloff’s argument that Weiss’s 

motion to compel arbitration should be denied based on section 1281.2, 

subdivision (c), we will remand this matter to the trial court to consider that 

issue, as well as to make any other orders consistent with this opinion.13

13 Despite Weiss’s contention that the arbitration between her and Orloff 

is governed by the FAA, the trial court may nevertheless apply the California 

procedural rule set forth in section 1281.2, subdivision (c). A court is 

precluded from considering whether to apply section 1281.2, subdivision (c) 

only when an arbitration provision “ ‘expressly designate[s] that any 

arbitration proceeding should move forward under the FAA’s procedural 

provisions rather than under state procedural law.’ ” (Los Angeles Unified 

School Dist. v. Safety National Casualty Corp. (2017) 13 Cal.App.5th 471,

482.) As the arbitration provisions in the agreements that Marshall and Ann 

entered into with Lincoln Financial “do[ ] not even mention the FAA, much 

less expressly adopt its procedural rules” (Avila v. Southern California 

Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 841), there is no bar to 

applying section 1281.2, subdivision (c). 
22

DISPOSITION

The order denying the motion to compel arbitration is reversed. This 

matter is remanded to the trial court for proceedings consistent with this 

opinion. The parties shall bear their own costs on appeal.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.