EXHIBIT B 

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INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION

In the Matter of the Arbitration Between )

)

PARKRIDGE LIMITED and MABEL MAK, )

 )

Claimants, )

 ) ICDR Case No. 01-17-0003-4918

and ) 

) PROCEDURAL ORDER NO. 2

) (Jurisdiction and Preliminary Issues)

 )

INDYZEN, INC. and PRAVEEN NARRA KUMAR, )

 ) 

Respondents. )

___________________________________________ )

)

INDYZEN, INC. and PRAVEEN NARRA KUMAR, )

 )

Cross-Claimants, )

 )

and )

 )

PARKRIDGE LIMITED, BOON GLOBAL )

LIMITED, F8 VIETNAM COMPANY LIMITED, )

CALIFORNIA FITNESS & YOGA CENTERS, )

CALIFORNIA MANAGEMENT GROUP and )

RANDY DOBSON, )

 )

Cross-Respondents. )

___________________________________________ )

This Order addresses various jurisdictional, pleading and preliminary issues raised by the 

parties at the start of this arbitration.

BACKGROUND

The case was initiated as a U.S. District Court proceeding in the Northern District of 

California (Case No: 4:16-cv-07387-KAW). The litigation has been stayed by the Court pending 

disposition in this matter. 

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In the court proceeding, Claimant/Cross-Respondent Parkridge Limited (“Parkridge”) and 

Claimant Mabel Mak (“Mak”) brought claims against Respondents/Cross-Claimants Indyzen, Inc. 

(“Indyzen”) and Praveen Narra Kumar (“Kumar”). No cross-claim was filed in that proceeding. 

Rather, Respondents brought motions to compel arbitration and stay the litigation pursuant to the 

arbitration agreement contained in the Software Development and License Agreement dated 

January 5, 2015 (the “Morfit Agreement”) between Parkridge and Indyzen. The Court stayed the 

action on the basis of the arbitration agreement and Claimants proceeded with this arbitration by 

submitting an arbitration Demand that tracked the Complaint in the court proceeding. 

In response to the arbitration Demand, and prior to the appointment of the Arbitrator, 

Respondents submitted an Answer generally denying the claims and submitted a Crossclaim 

(denominated “Counterclaim”) against Parkridge, its principal Cross-Respondent Randy Dobson 

(“Dobson”) and various entities alleged to be acting in concert with them, specifically, CrossRespondents Boon Global Limited (“Boon”), F8 Vietnam Company Limited (“F8”), California 

Fitness & Yoga Centers (CF&YC) and California Management Group (“CMG”) (the latter five 

Cross-Respondents, collectively the “Additional Cross-Respondents”).

Prior to the Preliminary Hearing, Claimants submitted motion papers objecting to arbitral 

jurisdiction over the additional Cross-Respondents and moving to strike claims in the Crossclaim.

The Additional Cross-Respondents specially appeared through Claimants’ counsel at the 

Preliminary Hearing to contest jurisdiction.

At the Preliminary Hearing, the Arbitrator, in consultation with counsel, set a briefing 

schedule on the issues. The parties have fully briefed the jurisdictional issues and various pleading 

issues, and raised additional issues in the course of doing so, and were allowed additional briefing 

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to address the additional issues raised. This Order disposes of all such issues so that this arbitration 

can proceed with scheduling, disclosures and the evidentiary hearing. 

It is agreed by the parties that arbitral jurisdiction is proper as between Claimant Parkridge 

and Respondent Indyzen. Claimants maintain their objection raised in the District Court 

proceeding that Respondent Praveen Narra Kumar (“Narra”) is not a party to the arbitration 

agreement and their claims against (and, now, the claims by) Narra are not subject to arbitration. 

All Cross-Respondents contest the existence of an arbitration agreement as to the Additional 

Cross-Respondents and the scope of the arbitration agreement as to the cross-claims against them.

Although claims are denied, no contest is made by the parties as to the jurisdictional standing of 

Claimant Mak.

The arbitration provision in the Morfit Agreement, paragraph 11, provides in pertinent part 

that “Except for any claim arising out of payments due to the Company, any dispute or 

disagreement arising between the Company and the Customer which is not resolved...shall be 

referred to arbitration” in San Jose, California under the AAA Commercial Arbitration Rules. 

COURT ORDER

In its Order Granting Defendants’ Motion to Stay Case and Compel Arbitration dated April 

18, 2017, the District Court determined that a valid agreement to arbitrate exists as between 

Parkridge and Inyzen and the agreement encompassed the dispute at issue under the Complaint. 

Specifically, the Court determined the language “any dispute or disagreement arising between the 

Company and the Customer” in the Morfit Agreement should be broadly interpreted and likely 

applies to all disputes in the Complaint filed by Parkridge against Indyzen. The Court noted that 

the only carve out is to “any dispute arising out of payments due to [Indyzen].” The Court 

determined that Claimant Mak is equitably estopped and bound by the arbitration provisions with 

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respect to the claims based on her status as the majority shareholder of Parkridge based on agency 

principles. Further, the Court determined that Respondent Narra is bound by the arbitration 

agreement with respect to the claims in the Complaint as an officer and agent of Claimant 

Parkridge and as an officer of Respondent Indyzen. Accordingly, the Court determined that no

claims by Claimants and against Respondents are clearly excluded from arbitration and the issue 

of arbitrability of the claims is delegated to the Arbitrator pursuant to the Morfit Agreement.

PLEADINGS AND JURISDICTIONAL ISSUES

Demand

It is alleged in the arbitration Demand that Claimant Parkridge is a Hong Kong company, 

Claimant Mak is a Hong Kong resident, Respondent Indyzen is a California corporation and 

Respondent Narra is a US resident.

It is alleged that, in 2013, Dobson and Narra entered into discussions regarding a software 

development project, specifically a mobile application combining health and fitness information 

with social media networking. The Demand alleges that Tibco was first hired to do the project and 

after Tibco failed to perform properly, Narra recommended his own company, Indyzen, to develop 

the application. 

The Demand alleges Parkridge was formed in 2013 and, in January 2015, a Shareholder 

Agreement was signed providing Mak 70% of the shares and Narra’s father, Parasurama Naidu 

Narra, 30% of the shares. The Shareholder Agreement provides that Narra, the son, would provide 

software development services, would serve as CTO of Parkridge and would have Indyzen do the 

development work at a discount. Three directors were appointed including Dobson and Narra. 

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The Morfit Agreement between Parkridge and Indyzen, an agreement for Indyzen to 

provide software development services to Parkridge, was signed effective January 5, 2015.1

Claimants contend that Narra, as a director and officer of Parkridge, failed to fulfill his 

obligations to Parkridge and breached fiduciary duties by utilizing Indyzen to develop the 

application to the detriment of Parkridge. Claimants contend that Narra misrepresented and 

concealed facts regarding Indyzen and that Indyzen charged an exorbitant price, delivered 

defective product and has wrongfully withheld documents relating to the development. 

Claimants allege that Respondents’ conduct gives rise to claims for breaches of fiduciary 

duty under California and Hong Kong law, aiding and abetting such breach of fiduciary duty under 

California law, and fraudulent misrepresentations and fraudulent concealment under California 

law. Claimants seek damages, injunctive relief and other relief. 

Respondents generally deny the allegations in the Demand and asserted affirmative 

defenses.

2

In their “Renewed Objection to this Tribunal’s Jurisdiction,” Claimants argue that 

Respondent Narra is not properly a party in arbitration as ordered by the Court because he did not 

sign the arbitration agreement and the claims are outside the scope of the agreement. In particular, 

they contend a significant portion of the alleged wrongdoing predates the Morfit Agreement and 

the claims are viable separate from it. Respondents contend this is an attempt to re-litigate issues 

previously resolved by the Court and Claimants arguments are incorrect for the reasons determined 

by the Court. 

																																																												 1 The record is not clear as to whether Narra became the CTO in 2013 at the time of the formation of Parkridge or in 

2015 at the time the Shareholder Agreement and Morfit Agreement were signed. 

2 Claimants moved to strike Respondents’ numerous affirmative defenses. By agreement among the parties and 

order of the Arbitrator, that matter was to be addressed through the filing of an Amended Answer and is not 

currently at issue. 

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Counts One (Breach of Fiduciary Duty – Cal Law), Three (Breach of Fiduciary Duty – HK 

Law), Six (Fraudulent Misrepresentation) and Seven (Concealment) in the Demand appear to be 

against Respondent Narra and, accordingly, based on the current positions of the parties, are 

subject to review as to arbitrability. Counts Two (Aid and Abetting Breach) and Four (Breach of 

Contract/Good Faith) and Five (Unjut Enrichment) appear to be against Respondent Indyzen; the 

claims are denied by Indyzen but the parties do not seek jurisdictional review as to those claims.

Cross-claim

Respondents/Cross-Claimants Indyzen and Narra submitted a Cross-claim against 

Parkridge and the Additional Cross-Respondents with respect to breach of contract and alleged IP 

misappropriation. Indyzen and Narra allege that Dobson and Narra entered into negotiations

regarding a project in 2013, that Dobson owns and operates Cross-Respondents CFYC and CMG, 

that Dobson and Narra set up Boon as a crowd funding company, that the Morfit Agreement was 

entered in early 2015, that Indyzen performed and that Parkridge failed to make proper payments. 

Further Cross-Claimants allege that Cross-Respondents have misappropriated IP developed by 

Indyzen and have launched an unauthorized clone. Cross-Claimants allege that Dobson 

commingled assets and resources and that the Cross-Respondents do not have a separate unity of 

interest and have conspired and collaborated with each other to commit the wrongs. Accordingly, 

Cross-Respondents seek compensatory and punitive damages, declaratory relief and other relief.

The Arbitrator asked counsel specially appearing for the Additional Cross-Respondents to 

provide a list of the proper legal names and citizenship of the Additional Cross-Respondents. 

Cross-Respondents’ counsel identified Boon as a Hong Kong company, F8 and CF&Y as 

Vietnamese companies and Dobson as a US citizen. Cross-Respondents’ counsel further indicated 

that CMG is not a legal entity; rather it is “a general name used in Vietnam, referring to a range of 

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brands and portfolio operating alongside CF&YC gym centers.” As Cross-Claimants have not had 

a full opportunity to properly present evidence on the legal existence of CMG and have not 

dismissed it as a party (and offer evidence that it is a legal entity and not merely a fictitious business

name), the Arbitrator proceeds for now on the basis that it is a named party in the arbitration. 

Cross-Claimants contend that the non-signatory Additional Cross-Respondents are related 

to Cross-Respondent Parkview or its principals and otherwise subject to arbitration pursuant to 

various non-signatory extension theories. Cross-Respondents contend that (1) the additional 

Cross-Respondents and the cross-claims against all Cross-Respondents are not subject to the 

arbitration clause, (2) jurisdiction over non-signatories is a matter solely for the courts, (3) the 

cross-claims are not pled with sufficient specificity and (4) the misappropriation claim is not 

actionable under California law.

APPLICABLE LAW

The parties have agreed to the applicable law with respect to the arbitration. As discussed 

with the parties at the Preliminary Hearing and, as set out in Procedural Order No. 1., as to 

substantive law, pursuant to paragraph 10 of the Morfit Agreement, California law governs 

interpretation of the Morfit Agreement. Various claims are asserted under the law(s) of California 

and Hong Kong, and involve actions by parties in other jurisdictions. As to procedural law, this is 

an international arbitration seated in California and the parties have agreed it is governed, 

accordingly, by the Federal Arbitration Act and California’s international arbitration statute. In 

accordance with paragraph 11 of the Morfit Agreement, the parties agree that the arbitration is to 

be conducted pursuant to the AAA Commercial Arbitration Rules. 

Arbitration is a matter of contract and a party cannot be required to submit to arbitration 

any dispute which he has not agreed to submit. AT&T Technologies, Inc. v. Communications 

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Workers of America, 475 US 643, 648 (1986). Questions as to whether a party is bound to arbitrate 

a dispute are gateway questions. Whether a party is bound to arbitrate raises a “question of 

arbitrability” for a court, not the arbitrator to decide. First Options of Chicago, Inc. v. Kaplan, 514 

US 938, 943-946 (1995). An arbitrator has no power to determine the rights and obligations of a 

person who is not a party to the arbitration agreement.

A non-signatory may be bound to an arbitration agreement under various extension theories 

such as agency, estoppel or alter-ego. See Comer v. Micor, Inc., 436, F.3d 1098 (9th Cir. 2006). 

The court must determine the status of a non-signatory to the arbitration agreement. Kramer v. 

Toyota, 705 F. 3d 1122 (9th Cir. 2013); see also, American Builders Association v. Au-Yang, 226 

Cal App 3d 170, 179 (1990). Accordingly, unless the parties, including the non-signatories, 

expressly submit the matter to arbitration, this is a question for the court. 

Where a non-signatory seeks to enforce an arbitration agreement, the doctrine of equitable 

estoppel applies when the signatory must rely on the term of the agreement in asserting the claims 

against the non-signatory or the claims are intimately founded in and intertwined with the 

underlying contract, and (2) when the signatory alleges substantially interdependent and concerted 

misconduct by the non-signatory and another signatory and the allegations of interdependent 

misconduct are founded in or intimately connected with the obligations of the underlying 

agreement. Kramer, 705 F. 3d at 1129.

Likewise, the question as to whether an arbitration agreement in a concededly binding 

contract applies to a particular type of controversy is for the court, not the arbitrator, to decide. 

First Options of Chicago, Inc. v. Kaplan, 514 US 938, 944 (1995); See Howsam v. Dean Witter 

Reynolds, Inc., 537 US 79, 84 (2002); Dream Theater, Inc. v. Dream Theater, 124 Cal App. 4th

547, 553 (2004). 

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Courts must defer questions of arbitrability to the arbitrator where the parties have “clearly 

and unmistakably” agreed that the arbitrator decide those issues. Howsam, 537 US at 84; Brennan 

v. Opus Bank (9th Cir 2015) (incorporation of the AAA rules containing a delegation provision 

into the employment agreement constituted a clear and unmistakable intent to delegate questions 

of arbitrability); see also, Nutraceuticals, LLC v. Cyanotech Corp, 769 F. 3d 1308 (11th Cir. 2014). 

In deciding whether the parties agreed to arbitrate a particular dispute, the courts apply 

ordinary state law contract principles governing contract formation. First Options, 514 U.S. at 938; 

Granite Rock Co. v. International Br. of Teamsters, 561 US 287, 287, 196 (2010). This necessarily 

requires the court to examine, and to a limited extent, construe the underlying agreement. See 

Freeman v. State Farm Mutual, 14 Cal 3d 473, 480 (1975). 

The analysis as to scope begins with the specific wording of the arbitration clause and 

whether it is broad or narrow, and if the clause is narrow whether the dispute involves an agreement 

collateral to the agreement. Prudential Lines Inc. v. Exxon Corp, 704 F. 2d 59, 63 (1983). The 

form “all claims or disputes arising out of or relating to this agreement or the breach thereof” is 

considered to be a broad form. See Fleet Tire Serv. of North Little Rock v. Oliver Rubber Co., 118 

F.3d 619 (1997); Larkin v. Williams, Woolley, Cogswell, Nakazawa & Russell, 76 Cal App 4th

227, 230 (1999). In Rice v. Downs, 248 Cal. App 4th 175, 186 (2016), the court concluded that the 

phrase “any disputes arising in connection with this agreement” is interpreted broadly to cover 

every dispute between the parties having a significant relationship to the agreement. 

In determining what disputes are subject to arbitration, the contract should be read as a 

whole. See Cal. Civ. Code §1648. Thus, despite broad wording, an arbitration clause does not 

apply to disputes unrelated to the matters covered in the contract. Lawrence v. Walzer & 

Gabrielson, 207 Cal. App. 3d 1501, 1506 (1989). 

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Any doubt as to whether a particular dispute falls within the arbitration clause is generally 

resolved in favor of arbitration. AT&T Technologies, 475 US 643, 650 (1986). But the principle 

that arbitration is favored does not apply to find a right to arbitrate where none exists. Victoria v. 

Superior Court, 40 Cal. 3d 734, 744 (1985). 

AAA Commercial Arbitration Rules, R-7 (a), provides that “(T)he arbitrator shall have the 

power to rule on his or her own jurisdiction, including any objections with respect to the existence, 

scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.”

This is the delegation provision under the AAA Commercial Arbitration Rules. 

DISCUSSION

The Arbitrator considers the jurisdictional defenses raised by the parties as to the existence 

of an arbitral agreement and the scope of the arbitral agreement. In addressing these defenses, it is 

important to distinguish, as the Court did, between issues that are solely in the province of the 

Court and issues that can and have been delegated by the parties to Arbitrator.

A. Existence of an Arbitration Agreement Between Cross-Claimants and the Additional 

Cross-Respondents: Non-signatory Issues

Cross-Claimants have asserted claims against the additional Cross-Respondents under the 

Morfit Agreement but the Additional Cross-Respondents are not signatories to the Morfit 

Agreement. Dobson is identified as the CEO and a Director of Parkridge; the other Additional 

Cross-Respondents are alleged to be owned and operated by Dobson and all are alleged to have 

acted in unity and collusion with each other. 

The Additional Cross-Respondents, having specially appeared to contest arbitral 

jurisdiction, contend they are not bound to the Morfit Agreement and that any determination 

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thereon is a matter for the Court.3 Cross-Claimants contend Cross-Respondents are bound and, as 

the case has been submitted to arbitration by the Court, the question can be decided by the 

Arbitrator. Cross-Claimants further contend that the Additional Cross-Respondents must be 

included for this arbitration to be meaningful and fair.4

As set forth above, the law is clear that a determination as to the existence of an arbitration 

agreement between parties is a matter for the courts. The delegation provision incorporated into 

the Morfit Agreement under the AAA Rules does not authorize the arbitrator to determine 

jurisdiction over entities that are not parties to the arbitration agreement. The issue as to nonsignatories implicates the existence of the delegation itself and the Additional Cross-Respondents 

have not submitted the issue to arbitration. Accordingly, a court must determine whether the

Additional Cross-Respondents are parties to the arbitration agreement. Thereafter, pursuant to the 

delegation provision agreed to by the parties to the agreement, the Arbitrator can assess the 

arbitrability of the claims against them.

For that reason, the Additional Cross-Respondents are dismissed from the arbitration 

subject to any further order from the Court (or agreement by the parties) that they are properly 

parties to the arbitration agreement. 

B. Existence of an Arbitration Agreement between Claimants and Narra

Claimants contest that there is arbitral jurisdiction over Respondent Narra. The Court has 

already determined that an arbitration agreement exists between Parkridge and Indyzen, and that 

																																																												 3 Cross-Respondents also raise the question of personal jurisdiction. Personal jurisdiction goes to the reach of the 

courts over a party; it is not an arbitral question. If Cross-Respondents are bound to an arbitration agreement that 

provides for arbitration in California, they are subject, under the arbitration agreement, to arbitration seated in 

California. 4 The immediate question is whether the court or the arbitrator decides on whether non-signatories are bound to the 

arbitration agreement. The underlying question is not a matter of efficiency; it is ultimately a question as to whether 

the non-signatories expressly or implicitly consented to be bound as a matter of law. 

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Mak and Narra are bound to it as agents. Claimants contend that the Court’s Order may be read so 

as to delegate to the Arbitrator authority to reconsider the Court’s determination as to the existence 

of an arbitration agreement. Respondents contend the matter has already been decided by the Court 

and Narra is a proper party for the reasons relied on by the Court. 

As addressed in the case law above, it is the sole province of the Court to determine the 

existence of an arbitration agreement between the parties; however, the parties may delegate 

questions of arbitrability to the Arbitrator. As a non-signatory to the arbitration agreement, Narra 

did not delegate questions as to the existence of the arbitration agreement. The Arbitrator reads the 

Court’s Order as having determined the agreement exists as to Narra (and then confirming the 

parties’ delegation to the Arbitrator the task of determining whether the asserted claims are within 

the scope of the arbitration provision). Moreover, as discussed later with respect to issues as to 

scope, the Arbitrator agrees with the Court that at least certain claims as to Narra are dependent on 

or intertwined with Morfit Agreement. 

Therefore, unless the Court instructs the Arbitrator otherwise, the Arbitrator may not

reconsider the Court’s determination that Narra is a party to the arbitration agreement. 

Accordingly, Claimants’ objection as to jurisdiction over Narra is overruled.

C. Scope of the Arbitration Agreement as to the Demand. 

The parties do not contest the arbitrability of the claims asserted against Indyzen. Claimants

contest the arbitrability of the claims asserted against Narra. Count One (Breach of Fiduciary Duty 

– Cal Law), Count Three (Breach of Fiduciary Duty – HK Law), Count Six (Fraudulent 

Misrepresentation) and Count Seven (Concealment) in the Demand all appear to be against Narra. 

Respondents contend that the Court made an assessment as arbitrability which must 

properly be adopted by the Arbitrator. Claimants contend that determinations as to scope are a 

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question for the Arbitrator. In light of the delegation provision incorporated in the Morfit 

Agreement under the AAA Rules, and as confirmed by the Court, determinations as to the scope 

of the arbitration agreement with respect to the claims, are within the province of the Arbitrator.

The Arbitrator observes that the Court made a preliminary assessment as to the nature of 

the claims for purposes of determining whether there was a delegation of arbitrability to the 

Arbitrator. The Arbitrator does not read the Court’s Order as a ruling on the scope of the arbitration 

agreement. Doing so would not be in the province of the Court given the delegation provision and, 

of course, would defeat the purpose of the Court confirming that questions regarding the scope of 

the arbitration agreement as to the claims were delegated to the Arbitrator.

Accordingly, the Arbitrator considers whether the four claims in question are within the 

scope of the arbitration agreement. 

Ultimately, the question goes to whether the parties intended that the claims asserted would 

be subject to the arbitration agreement. The Arbitrator begins with the language of the clause itself 

and agrees with Respondents that the phrase “any dispute or disagreement arising between the 

Company and the Customer” is a broad form. By its express language, it is not limited to disputes 

arising out of the contract nor even to disputes relating to the contract. 

However, the clause must also be considered in the context of the entire agreement and the 

broader relationship between the parties. There is no evidence to suggest that the Morfit Agreement 

is anything more than a software development agreement and no evidence to suggest that the 

parties intended it to apply to disputes other than those in the context of the Indyzen being a 

software developer and Parkridge being its customer. 

As alleged, the parties had an extended relationship and various parties held multiple 

positions. Narra was the CEO of Indyzen and, in the course of his relationship with Parkridge, was 

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appointed as a Director and CTO of Parkridge. (Similarly, Cross-Claimants allege Dobson holds 

multiple roles among various Cross-Respondents: Dobson and Narra formed Boon together and 

their spouses, including Mak, have various ownership interests). Accordingly, the question is 

whether the arbitration provision in the Morfit Agreement was intended to extend to the 

developer/customer relationship or whether it was intended to extend to all various legal 

relationships that give rise to the claims. 

In that regard, the record does not support the conclusion that the arbitration provision in a

software development project agreement between Parkridge and Indyzen was intended to extend 

to Narra’s role in his capacity as director, officer or employee of Parkridge. The Morfit Agreement 

does not address Narra’s role in Parkridge, let alone specify any fiduciary or employee terms or 

obligations. Accordingly, it does not appear that Narra ever agreed, or that the signatories intended, 

that the Morfit Agreement would govern his engagement as a director, officer or employee of 

Parkridge or that that the arbitration clause therein would extend to those relationships.

To be clear, this does not mean that Narra is not bound to the Morfit Agreement. As the 

District Court has already determined, he is. The question here is whether the claims against him 

are within the scope of the arbitration clause.

Accordingly, as to Count One for breach of fiduciary duty under California law, the claim 

appears to arise entirely from Narra’s role as a Director and the CTO of Parkridge.5 The claims 

asserted are for breaches of duty of loyalty, good faith and care held by a corporate officer and 

director. While it is readily alleged that Narra engaged in the wrongful conduct to benefit Indyzen, 

the obligations owing pursuant to the claim were those of Narra as a director and officer of 

																																																												 5 It is not readily apparent why fiduciary duties owing to a Hong Kong corporation by an officer and director would 

arise under California law; however, that is not an issue for consideration at this time. 

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Parkridge and were separate from the agreement Indyzen made to develop software. The claim 

does not “arise between the Company and the Customer.” Accordingly, the objection is sustained 

and Count One as to Narra is dismissed without prejudice for Claimant to pursue the claim in other 

proceedings.

6

As to Count Three against Narra for breach of duty under Hong Kong law, this claim, 

similarly, appears to arise solely from Narra’s obligations as a corporate officer and director of 

Parkridge. The particular allegations regarding breaches of confidentiality and due care are as to 

obligations allegedly owing by Narra in his corporate capacity as an officer and director of 

Parkridge and separate from the agreement Indyzen made to develop software. The claim does not 

“arise between the Company and the Customer.” Accordingly, the objection is sustained and Count 

Three as to Narra is dismissed without prejudice for Claimant to pursue the claim in other 

proceedings. 

Count Six for Fraudulent Misrepresentation asserts that Narra, on behalf of Indyzen, 

intentionally misrepresented Indyzen’s skills, qualifications and pricing. It is evident from the 

claim the allegations arise with respect to Narra’s role as the CEO or otherwise as an agent of 

Indyzen. As the arbitration clause is broadly drafted to cover all disputes that “arise between the 

Company and the Customer,” and this claim arises from Narra’s role on behalf Indyzen, the claim 

is within the scope of the arbitration agreement. Accordingly, Claimants’ objection to the claim 

on the basis of arbitral jurisdiction is overruled.

7

																																																												 6 In light of the ruling on Count One, the Arbitrator invites the parties to consider dismissal without prejudice of 

Count Two against Indyzen (for aiding and abetting in breach of fiduciary duty under California law). Although the 

Arbitrator makes no assessment of the arbitrability of the claim, it would presumably make sense for the parties to 

have both Counts considered in the same proceeding. 

7 The choice of law applicable to this claim and any applicable defenses will be addressed in further proceedings.

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Count Seven for Fraudulent Concealment asserts that, by way of Narra’s position and 

knowledge, he held a heightened obligation to Parkridge and intentionally concealed material 

information regarding Indyzen. Although it appears the alleged relationship of trust and confidence 

arises from both Narra’s role at Parkridge and his knowledge of Indyzen, the concealment is 

alleged to arise and the claim is asserted in the context of Narra acting on behalf of Indyzen to 

promote Indyzen’s services. Therefore, as with the prior claim, the claim is within the scope of 

the arbitration agreement. Accordingly, Claimants’ objection to the claim on the basis of arbitral 

jurisdiction is overruled.

D. Scope of the Arbitration Agreement as to the Cross-claims and Motion to Strike. 

As the Additional Cross-Respondents are dismissed without prejudice, the Arbitrator 

considers the scope of the arbitration agreement only as to the cross-claims against Parkridge at 

this time. The cross-claims are pled generally but the relief requested appears to arise from 

development relationship under the Morfit Agreement or otherwise as to disputes between Indyzen 

as a developer and Parkridge as a customer.8

The allegations as to Boon, however, specifically with respect to Narra and Dobson 

creating Boon and questions regarding ownership or roles therein do not appear to relate to the 

developer and customer relationship under the Morfit Agreement, and accordingly are not within 

the scope. The Arbitrator will not entertain claims as to those issue and Cross-Claimants are free 

to pursue those claims in other proceedings. 

Further, the Morfit Agreement specifically excludes “claims arising out of payments due 

to {Company].” This must reasonably be read to exclude from the scope of arbitration claims with 

																																																												 8 These claims are made jointly by Indyzen and Narra and, as addressed above, the Court has already determined 

that Narra is a party in his capacity as an agent of Indyzen. Accordingly, Narra is entitled to proceed with claims 

relating to the development relationship between Indyzen and Parkridge. 

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respect to payment to Indyzen under the development agreement. The parties offer no evidence as 

to the intent for this provision; however, the conclusion as to this exclusion is that the parties are 

to pursue claims for amounts due under the development agreement in court.9

In sum, Cross-Claimants’ claims in contract or tort regarding misappropriation relating to 

the development relationship appear to be within the scope of the arbitration agreement. Crossclaimants may proceed with these claims as limited herein; subject to further review by the 

Arbitrator as the claims develop.

E. Pleading Issues as to the Cross-Claim

Cross-Respondents contend that the cross-claims are not alleged with sufficient 

particularity to allow them to respond. The claim as to breach of contract does not expressly specify 

the breach. The claim as to misappropriation merely alleges that IP rights have been 

misappropriated. 

Claims in arbitration need not be pled with particularity and, accordingly, motions to strike 

are not routinely allowed. Cross-Respondents have sufficient detail to generally answer as to 

whether they (1) breached the contract in any way and (2) are rightfully entitled to code developed 

by Cross-Claimant or otherwise misappropriated proprietary information owned by CrossClaimants. 

The Arbitrator agrees the allegations will not be sufficient for the evidentiary hearing. The 

parties will be required to disclose all documents upon which they intend to rely and CrossClaimants’ disclosures are required to include specific detail on the alleged contract breaches and 

to identify the IP allegedly misappropriated, including details as to individuals involved and where, 

																																																												 9 In considering delegation, the District Court made a distinction between claims for amounts due and claims for 

overpayment. The Arbitrator does not need to reach that narrow distinction as to this claim. 

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when and how the misappropriation occurred.10 The parties will have an opportunity to request 

documents and, if agreed or otherwise allowed, other discovery regarding the allegations. Further, 

the Arbitrator will consider scheduling requiring submission of direct evidence on claims in 

advance of the evidentiary hearing. If Cross-Claimants fail to provide sufficient detail to allow 

Cross-Respondents a fair opportunity to respond to the claim at the evidentiary hearing, the 

Arbitrator will consider dismissal of the claim. Accordingly, the motion to strike as to specificity

is denied, without prejudice. 

Cross-Respondents also contend that the misappropriation claim “referring to 

misappropriation of intellectual property” is not actionable under California law and is pre-empted 

under federal law. 

Cross-Respondent appear to base part of their argument on the premise that the choice of 

law provision in the Morfit Agreement limits the parties to claims under California law. The choice 

of law provision merely provides the law governing interpretation of the Morfit Agreement. The 

parties are not restricted from asserting claims under California law, federal law or foreign law. 

Cross-Complainants are required, however, to be clear as to the claims asserted so that it 

may be determined whether the claims are actionable by law and supported by the evidence. The

phrase “misappropriated intellectual property rights” is not sufficiently clear as to whether the 

alleged wrong was a trade secret misappropriation.

11 Cross-Claimants will need to provide further 

detail as to the claim and the facts supporting it in the course of their disclosures and briefing. 

Although it is premature to dismiss the claim at the arbitration pleading stage, Cross-Respondents

																																																												 10 As to all claims, generic descriptions will not suffice. Further, as addressed earlier, claims as to payments due

under the Morfit Agreement are precluded by the arbitration clause and will not be allowed. 11 Claimants are correct that the claim may well be preempted under federal law but, in the context of arbitration, 

that conclusion is premature at this point. 

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may seek leave to submit a motion for summary adjudication following disclosures or following 

submissions in support of the claim. Accordingly, the motion to dismiss for failure to state a claim 

is denied, without prejudice. 

F. Related Issues

1. Audio Recording

Respondents objected to Claimants’ submission of an audio recording purported to be a 

dialogue with Mr. Dobson regarding the present motions and the issues in the case. The parties 

made no agreement and were not authorized by the Arbitrator to submit testimony by audio 

recording. The participants in the recording were not identified, the submission was not made 

under oath, and much of the dialogue was vague, nonresponsive and irrelevant as to the instant 

issues addressed in the current motions. Claimants contend they recognize the evidence was not 

provided in a standard format but that this recording was the most expedient way to respond to 

Respondents’ briefing. Respondents’ objection to the submission of the audio recording for 

purposes of the instant motions is sustained.

For future planning, unless otherwise allowed by the Arbitrator, all witness testimony is to 

be provided by written declaration under penalty of perjury under California law. The parties are 

free to agree to submission of testimony by audio or video recording presuming appropriate 

measures are taken to ensure the reliability of the testimony and to allow for appropriate objections.

The Arbitrator does not intend to admit testimony at the evidentiary hearing without an opportunity 

for cross-examination.

2. Receipt of Source Code and other evidence

In the course of briefing, Respondents submitted a letter offering “impeachment evidence”

regarding receipt of Morfit App Source Code. The issues in that letter are properly addressed in 

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the merits phase and evidence relating thereto should be included with Respondents’ evidentiary 

submissions. Similarly, various other submissions going to the merits and credibility of the 

witnesses were included with the submissions. These are all properly matters to be considered at 

the merits phase. 

3. Preservation and Spoliation

In the course of the briefing, Respondents raised concerns regarding preservation and 

spoliation of evidence. The parties were invited to enter into a preservation agreement and were 

cautioned regarding possible preservation obligations and the risk of sanctions, including adverse 

inferences, for spoliation. At the subsequent status conference, the parties informed the Arbitrator 

that the issues had been resolved. Accordingly, the Arbitrator takes no further action on these

issues at this time. 

G. Procedures and Scheduling

The parties are scheduled for a further status conference in this matter on November 14, 

2017. The parties are requested to confer in advance on discovery and other pre-hearing and 

hearing procedures and on the timetable for this arbitration, including a date for the evidentiary 

hearing. 

An inquiry was made in oral argument, after hearing the Arbitrator’s preliminary views, 

whether this arbitration will be stayed by the Arbitrator pending any disposition by the Court as to 

the Additional Cross-Respondents. It will not absent any order of the Court or agreement of the 

parties. The Arbitrator takes no position as to whether a stay is proper as the matter has not been 

briefed; Cross-Claimants are free to make an application to the Court or the Arbitrator, as 

appropriate, if they believe there is a proper legal basis to stay the arbitration. 

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The Arbitrator recognizes that the positions taken by the parties and rulings on the 

jurisdictional issues result in various claims to be decided in this arbitration and other claims to be 

addressed in other proceedings. This outcome may not be the most expeditious way to proceed but 

it is the result required by the parties’ arbitration agreement. The Arbitrator intends to proceed to 

the merits of the claims in arbitration. The parties remain free to agree to submit all disputes to 

arbitration or litigation. The parties are encouraged to confer as to how they wish to proceed. 

So Ordered. 

Dated: November 6, 2017

Gary L. Benton, Arbitrator

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