Preview
E-FILED
2/14/2018 4:06 PM
BRIAN K. CUTTONE (SBN 201314)
CUTTONE & ASSOCIATES FRESNO COUNTY SUPERIOR COURT
5380 N. Fresno Street, Suite 102
Fresno, California 93710
By: L. Whipple, Deputy
Telephone: 559.228.8490
Facsimile: 559.421 l 991
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\OooflaLIIAUJN—I
Attorneys for Defendants, Ken and Kathy Higginbotham
SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO
MICHAEL RAY BRIDGE; Case No.: 17CECG03536
SHERYL D. BRIDGE;
Plaintiffs, REPLY BRIEF IN SUPPORT 0F
PETITION TO COMPEL
v. ARBITRATION, MOTION TO STAY
RELATED ACTION, AND MOTION
KEN HIGGINBOTHAM; an individual; FOR FEES FOR THIS PROCEEDING
KATHY HIGGINBOTHAM, an
individual; GUARANTEE REAL
ESTATE, a California Corporation; and Date: February 22, 2018
DOES 1 through 15, inclusive. Time: 3:30 p.m.
Dept: 50]
Defendants. Judge: Hon. Mark Snauffer
VVVVVVVVVVVVvvvvvvvvvvvvvvvv
‘
Complaint Filed: October l8, 2017
GUARANTEE
NNNNNNNNNwt—tt—flfl—n—nn—fl—
REA' 'L ESTATE, a
California Corporation,
OONQUIAWN—‘OOWQQUIhWNflO
Cross-Complainant,
v.
KEN HIGGINBOTHAM; an individual;
and ROSE 1-10, inclusive.
Cross-Defendant. Cross Complaint Filed: December 20,2017
Petitioners KEN HIGGINBOTHAM and KATHY HIGGINBOTHAM (the
“Higginbothams”), as parties to an arbitration agreement with Plaintiffs MICHAEL BRIDGE
and SHERYL BRIDGE (“Plaintiffs”), respectfully submit this reply brief in support 0f their
petition compelling arbitration of all disputes, staying the related action, and for fees for this
Reply in Support of Petition to Compel Arbitration and Motion to Stay
proceeding because Plaintiffs have refused to arbitrate a controversy despite a contractual
provision to the contrary.
I. ARGUMENT
A. Plaintiffs are Contractually Obligated to Arbitrate itsClaims Against the
Higginbothams and Such Arbitration will Not Result in Conflicting Rulings
\OWQQUIAMN—
All of Plaintiffs’ claims regarding Guarantee Real Estate (“Guarantee”) require a
finding of liability on Ken Higginbotham (“KH”) in his individual capacity. Plaintiffs would
have this court believe that the gravamen of the Complaint revolves around KH’s actions as
an agent of Guarantee, making arbitration of this legal action improper. However, Plaintiffs
have brought four causes of action, one of which Plaintiffs have split into two “counts”: (1)
violation of Civil Code 1102 (against Guarantee and the Higginbothams); (2) Negligence,
Count 1 (against Guarantee and KH); (3) Negligence, Count 2 (against the Higginbothams);
(4) Fraud (against alldefendants); and (5) Breach of Contract (against the Higginbothams).
The claims against Guarantee are prefaced on the actions and liability of KH in his
individual capacity. Moreover, Plaintiffs’ allegations against Guarantee expressly state that
any liability is by and through actions of KH. “GUARANTEE, by and through its agent KH .
..
.” (Plaintiffs’ Complaint at 1]l4.) “As agents KH and GUARANTEE had a duty . . .
.”
(Id.
“. Defendants failed to conduct a competent and
at 1| 34.) . . reasonably digital visual
inspection” which
WVOM$MN~OOO¢NQM$WN~O
NNNNNNNNNH~—~—~—~—~
is a duty Plaintiffs allege was that of KH. (Id. at 11 35.) “GUARANTEE, by
and through their agent KH . ..
.”
(1d. at1] 50.) “. .. GUARANTEE, thought their agent KH . .
.” The basis for Plaintiffs’ claims of liability Guarantee and
. (Id. at 57.) only against are by
through KH, whom they have sued in his individual capacity. The claims against KH can be
arbitrated and the findings of such arbitration will resolve the issues in this case.
As Plaintiffs’ Oppositions states, arbitration of issues in a plaintiff‘s complaint is
permissible if a decision by arbitration can be “harmoniously used in the overall litigation.”
(Plaintiffs’ Opposition at 3:24-28.) Arbitration of the issues in Plaintiffs‘ complaint can be
harmoniously used in the overall litigation in that the use 0f arbitration to determine the
Higginbothams’ liability will dispose ofall liability set forth in the Complaint.
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Reply inSupport of Petition to Compel Arbitration and Motion to Stay
The allegations in Guarantee’s Cross-Complaim for indemnity further the argument
that Guarantee’s liability is premised on any liability on KH and that arbitration will not result
in conflicting rulings. Arbitrating this matter as it relates to Ken and Kathy Higginbotham will
result in findings applicable to all parties (defendants included) involved in this matter and
will relieve the Court of having to hear this case. Arbitration will not result in conflicting
\oooqaxuagum—
rulings. Moreover, inconsistent rulings can be avoided by staying the litigation while the
arbitration between the Higginbothams and Plaintiffs is completed, and arbitration findings
are confirmed.
B. Denial of the Petition to Compel Arbitration will Unfairly Prejudice Ken
Higginbotham
Plaintiffs have attempted to draw a distinction between the two “hats” worn by KH in
the purchase and sale of the Subject Property as a reason for denying the Higginbothams’
motion. However, regardless of the “hat” worn by KH, he is being sued in his individual
capacity — the same capacity under which he entered into the arbitration agreement. Plaintiffs
agreed to the arbitration agreement of the Residential Purchase and Sale Agreement (the
“RPA”) and Plaintiffs were aware that KH was also the Listing Agent in the transaction. The
NNNNNNu—a—b—Iwwv—I—nwp—n—
arbitration provision of the RPA was a material provision and denying the Higginbothams
their contractual right to arbitration will greatly prejudice them, particularly in light ofthe fact
that arbitrating the issues raised in Plaintiffs’ Complaint will result in resolution for all parties.
C. This Petition Constitutes a “Proceeding Arising Out of the Agreement
[RPA]” and, Thus, the Higginbothams are Entitled to Attorneys’ Fees Related to this
Petition
Plaintiffs argue that the Higginbothams are not entitled to attomcy’s fees associated
with the enforcements of the Higginbothams’ arbitration rights because such attorney’s fees
are only awarded upon determination of the ultimate prevailing party for enforcement of the
contract. Plaintiffs also assert that the attomey’s fees provision in the RPA is governed by
Civil Code 1717. However, Plaintifi‘s’ application ofCivil Code 1717 is improper.
///
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Reply in Support of Petition to Compel Arbitration and Motion to Stay
The purpose of Civil Code 1717 is to prevent parties from attempting to enforce
unilateral attorneys’ fees provisions. In the RPA, Plaintiffs and the Higginbothams expressly
agreed that “[i]n any action, proceeding, or arbitration between Buyer and Seller arising out
of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees
and
Owflamwa—I
costs from the non-prevailing Buyer 0r Seller . . .
.”
(RPA at 1!25, emphasis added.) The
attorney fee agreement between Plaintiffs and Higginbothams does not require that any over-
arching dispute be determined before the prevailing party of a proceeding arising out of the
RPA is permitted to collect attorney fees.
Plaintiffs would have this Court find that the express language of the attorney fee
provision Plaintiffs and Higginbothams agreed does not apply, but rather the language of
Civil Code 1717 does. It is counterintuitive to argue that the rights afforded by the express
language of the attorney fee provision is limited by the civil code section cited by Plaintiffs.
Civil Code 1717 does not limit a party’s rights to attorney fees pending resolution of the
action of its entirety. Rather, the RPA expressly allows for attomey’s fees for the prevailing
party to any proceeding arising out of the Agreement.
Here, we have a dispute as to the arbitration agreement of the Agreement (or the RPA)
and a proceeding related to enforcing those arbitration rights (the instant petition).
NNNNNNNNN—Iu—‘flu—It—In‘n—In—a—Afl
Higginbothams, should they prevail, are entitled to attomey’s fees for having t0 enforce these
WNQMAWNHOOmQGMAWN—‘O
rights. Under Plaintiffs’ illogical argument, any contract allowing for anomey’s fees would
also prevent a prevailing party from being entitled to attomey’s fees or costs associated with a
motion to compel discovery. Civil Code 1717 has been improperly used by Plaintiffs and does
not prevent the Higginbothams from being awarded attomeys’ fees in this instance.
Plaintiffs rely on the case of Roberts v. Packard, Packard & Johnson. However,
Plaintiffs fail to provide any citations to the Roberts case in support of their numerous
conclusions based on the “unanimous, well-reasoned opinion.” (Plaintiffs’ Opposition at 7:24-
26.) Plaintiffs spend nearly two pages of their Opposition discussing the veracity and strength
of the application of the Roberts case without a single citation to the case. However, Plaintiffs
conveniently failed to explain to the Court that one large consideration for the Roberts Court
4
Reply inSuppon of Petition to Compel Arbitration and Motion lo Stay
was whether the agreement between the parties was in congruence with Civil Code 1717.
(Roberts v. Packard, Packard & Johnson (2013) 217 Cal.App.4th 822, 831.) 1n fact, the
Roberts Court specifically concerns itselfwith the language ofthe actual agreement between
the parties and finds that the agreement between the parties in the Roberts case had no
distinction from the language in Civil Code 1717. (1bid.) Therefore, application of Civil Code
\OOONQMAMN—
1717 to their agreement was proper. (Ibid) Such is not the case here.
The agreement between the Higginbothams and Plaintiffs has language far different
from that of Civil Code 1717. The attorney fee provision that Plaintiffs and Higginbothams
entered into includes provision of attorney fees for prevailing parties to any action (as in Civil
Code I717), in addition to any proceeding or arbitration. Thus, Plaintiffs cannot use Civil
Code 1717 to alter the contractual rights agreed upon in the RPA.
D. lf the Petition to Compel Arbitration is Granted, then the Proceeding
Should Be Stayed
Plaintiffs only argue that the proceedings should not be stayed ifthe petition to compel
arbitration is denied. It is clearly a logical, procedural decision to stay these proceedings
should the petition to compel arbitration be granted.
ll. CONCLUSION
NNNNNNNNN————~w—t—Ip—Ip—tu—I
It isclear that Plaintiffs and the Higginbothams entered into an agreement within the
RPA to arbitrate
WQO‘MAWNHocmNQUI-PWNflo
the exact type of disputes of which Plaintiffs have complained. Plaintiffs
have refused to perform their contractual obligation to arbitrate by attempting to place a
condition upon the arbitration, a condition which was neither contemplated nor agreed to
when the Arbitration Agreement was entered into. Compelling arbitration does not risk
conflicting judgments as the theory of liability alleged against the third-party defendant is
dependent upon liability on part of Mr. Higginbotham himself. Civil Code I717 cannot be
properly applied to the attorney fee agreement between Plaintiffs and Higginbothams and the
express language of the agreement isnot aligned with the language of the Civil Code.
///
///
5
Reply inSupport of Petition to Compel Arbitration and Motion to Stay
For these reasons, the court should (l) compel Plaintiffs to submit to the arbitration to
which they had previously agreed; (2) stay the related court-action filed by Plaintiffs: and (3)
#LAN order Plaintiffs to pay to the Higginbothams $4,435.00 in attorneys fees and costs associated
with this petition and motion.
Dated: February 14, 2018 Respectfully submitted,
OOOONQUI
CUTTONE & ASSOCIATES
BRIAN . CUTTONE, Attorney for
Defendants, KEN AND KATHY
HIGGINBOTHAM
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Reply in Support of Petitionto Compel Arbitration and Motion Io Stay
PROOF OF SERVICE
STATE OF CALIFORNIA )
)ss.
AWN
COUNTY OF FRESNO )
I am employed in the County of Fresno, State of California. lam over the age 0f I8 21nd not a party t0
the within action; my business address is 5380 N.Fresno Street, Suite102, Fresno, California 937 l0.
On February 14, 2018, lserved the foregoing documents(s) described as
REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL ARBITRATION,
MOTION TO STAY RELATED ACTION, AND MOTION FOR FEES FOR THIS
PROCEEDING
OOOONQUI
on the interested by placing
parties in this action
(X) a true copy or( )the original thereof enclosedin a sealed envelope addressed as follows:
(X) (BY MAIL) l am readily familiar with the firm's practice of collection andprocessing correspondence
11 for mailing. Under that practiceitwould be deposited with the U.S. Postal Service on that same day
with postage thereon fully prepaidat Fresno. California,in the ordinary course of business; Iam aware
that on motion ofthe party served, service is presumed invalid ifthe postalcancellation date or postage
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meter date is more than one day after the date of deposit for mailing in this affidavit.
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' Mike Chappars, Esquire/ Law Office of Robert C. Abrams/54I2 North Palm Ave, Suite 10L
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Fresno, CA 93704
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Marisa L. Balch, Esquire/Wanger Jones Helsley PC/265 E. River Park Circle. Suite
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310/Fresno, CA 93720
( ) BY E-MAIL OR ELECTRONIC TRANSMISSION: l caused a copy ofthe documents Io be sent from
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email address rstasio@cuttonelaw.com to the persons at the e-mail addresses listed below. | did not
receive, within a reasonable time after the transmission. any electronic
message or other indication that the
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transmission was unsuccessful.
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( ) (BY PERSONAL SERVICE) lcaused such envelope to be delivered by hand to:
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( ) (BY FACSIMILE) Ifaxed such document pursuant to Rule 2008. California Rules of Court. The
facsimile machine l used complied with Rule 2003, California Rules 0f Court, and no error was
20 machine. Pursuant Rule
reported by the to 2008(e), California Rules of Court. the machine printed a
transmission record ofthe transmission, a copy of which is attachedto this declaration.The name and
21 facsimile telephone number ofthe person(s) served isas follows:
22 (X) (STATE) l declare under penalty of perjury under the laws of the Stme of
California that the foregoingis true and correct.
23
( ) (FEDERAL) l declare thatIam employed inthe office ofa member ofthe bar ofthis
24 court atwhose direction the servicewas made.
25 Executed on February 14, 20l8, atFresno, California.
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27 Rebecca Stasio
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Reply in Support 0f Petitionto Compel Arbitration and Motion to Stay
Preview
E-FILED 2/14/2018 4:06 PM BRIAN K. CUTTONE (SBN 201314) CUTTONE & ASSOCIATES FRESNO COUNTY SUPERIOR COURT 5380 N. Fresno Street, Suite 102 Fresno, California 93710 By: L. Whipple, Deputy Telephone: 559.228.8490 Facsimile: 559.421 l 991 . \OooflaLIIAUJN—I Attorneys for Defendants, Ken and Kathy Higginbotham SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO MICHAEL RAY BRIDGE; Case No.: 17CECG03536 SHERYL D. BRIDGE; Plaintiffs, REPLY BRIEF IN SUPPORT 0F PETITION TO COMPEL v. ARBITRATION, MOTION TO STAY RELATED ACTION, AND MOTION KEN HIGGINBOTHAM; an individual; FOR FEES FOR THIS PROCEEDING KATHY HIGGINBOTHAM, an individual; GUARANTEE REAL ESTATE, a California Corporation; and Date: February 22, 2018 DOES 1 through 15, inclusive. Time: 3:30 p.m. Dept: 50] Defendants. Judge: Hon. Mark Snauffer VVVVVVVVVVVVvvvvvvvvvvvvvvvv ‘ Complaint Filed: October l8, 2017 GUARANTEE NNNNNNNNNwt—tt—flfl—n—nn—fl— REA' 'L ESTATE, a California Corporation, OONQUIAWN—‘OOWQQUIhWNflO Cross-Complainant, v. KEN HIGGINBOTHAM; an individual; and ROSE 1-10, inclusive. Cross-Defendant. Cross Complaint Filed: December 20,2017 Petitioners KEN HIGGINBOTHAM and KATHY HIGGINBOTHAM (the “Higginbothams”), as parties to an arbitration agreement with Plaintiffs MICHAEL BRIDGE and SHERYL BRIDGE (“Plaintiffs”), respectfully submit this reply brief in support 0f their petition compelling arbitration of all disputes, staying the related action, and for fees for this Reply in Support of Petition to Compel Arbitration and Motion to Stay proceeding because Plaintiffs have refused to arbitrate a controversy despite a contractual provision to the contrary. I. ARGUMENT A. Plaintiffs are Contractually Obligated to Arbitrate itsClaims Against the Higginbothams and Such Arbitration will Not Result in Conflicting Rulings \OWQQUIAMN— All of Plaintiffs’ claims regarding Guarantee Real Estate (“Guarantee”) require a finding of liability on Ken Higginbotham (“KH”) in his individual capacity. Plaintiffs would have this court believe that the gravamen of the Complaint revolves around KH’s actions as an agent of Guarantee, making arbitration of this legal action improper. However, Plaintiffs have brought four causes of action, one of which Plaintiffs have split into two “counts”: (1) violation of Civil Code 1102 (against Guarantee and the Higginbothams); (2) Negligence, Count 1 (against Guarantee and KH); (3) Negligence, Count 2 (against the Higginbothams); (4) Fraud (against alldefendants); and (5) Breach of Contract (against the Higginbothams). The claims against Guarantee are prefaced on the actions and liability of KH in his individual capacity. Moreover, Plaintiffs’ allegations against Guarantee expressly state that any liability is by and through actions of KH. “GUARANTEE, by and through its agent KH . .. .” (Plaintiffs’ Complaint at 1]l4.) “As agents KH and GUARANTEE had a duty . . . .” (Id. “. Defendants failed to conduct a competent and at 1| 34.) . . reasonably digital visual inspection” which WVOM$MN~OOO¢NQM$WN~O NNNNNNNNNH~—~—~—~—~ is a duty Plaintiffs allege was that of KH. (Id. at 11 35.) “GUARANTEE, by and through their agent KH . .. .” (1d. at1] 50.) “. .. GUARANTEE, thought their agent KH . . .” The basis for Plaintiffs’ claims of liability Guarantee and . (Id. at 57.) only against are by through KH, whom they have sued in his individual capacity. The claims against KH can be arbitrated and the findings of such arbitration will resolve the issues in this case. As Plaintiffs’ Oppositions states, arbitration of issues in a plaintiff‘s complaint is permissible if a decision by arbitration can be “harmoniously used in the overall litigation.” (Plaintiffs’ Opposition at 3:24-28.) Arbitration of the issues in Plaintiffs‘ complaint can be harmoniously used in the overall litigation in that the use 0f arbitration to determine the Higginbothams’ liability will dispose ofall liability set forth in the Complaint. 2 Reply inSupport of Petition to Compel Arbitration and Motion to Stay The allegations in Guarantee’s Cross-Complaim for indemnity further the argument that Guarantee’s liability is premised on any liability on KH and that arbitration will not result in conflicting rulings. Arbitrating this matter as it relates to Ken and Kathy Higginbotham will result in findings applicable to all parties (defendants included) involved in this matter and will relieve the Court of having to hear this case. Arbitration will not result in conflicting \oooqaxuagum— rulings. Moreover, inconsistent rulings can be avoided by staying the litigation while the arbitration between the Higginbothams and Plaintiffs is completed, and arbitration findings are confirmed. B. Denial of the Petition to Compel Arbitration will Unfairly Prejudice Ken Higginbotham Plaintiffs have attempted to draw a distinction between the two “hats” worn by KH in the purchase and sale of the Subject Property as a reason for denying the Higginbothams’ motion. However, regardless of the “hat” worn by KH, he is being sued in his individual capacity — the same capacity under which he entered into the arbitration agreement. Plaintiffs agreed to the arbitration agreement of the Residential Purchase and Sale Agreement (the “RPA”) and Plaintiffs were aware that KH was also the Listing Agent in the transaction. The NNNNNNu—a—b—Iwwv—I—nwp—n— arbitration provision of the RPA was a material provision and denying the Higginbothams their contractual right to arbitration will greatly prejudice them, particularly in light ofthe fact that arbitrating the issues raised in Plaintiffs’ Complaint will result in resolution for all parties. C. This Petition Constitutes a “Proceeding Arising Out of the Agreement [RPA]” and, Thus, the Higginbothams are Entitled to Attorneys’ Fees Related to this Petition Plaintiffs argue that the Higginbothams are not entitled to attomcy’s fees associated with the enforcements of the Higginbothams’ arbitration rights because such attorney’s fees are only awarded upon determination of the ultimate prevailing party for enforcement of the contract. Plaintiffs also assert that the attomey’s fees provision in the RPA is governed by Civil Code 1717. However, Plaintifi‘s’ application ofCivil Code 1717 is improper. /// 3 Reply in Support of Petition to Compel Arbitration and Motion to Stay The purpose of Civil Code 1717 is to prevent parties from attempting to enforce unilateral attorneys’ fees provisions. In the RPA, Plaintiffs and the Higginbothams expressly agreed that “[i]n any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and Owflamwa—I costs from the non-prevailing Buyer 0r Seller . . . .” (RPA at 1!25, emphasis added.) The attorney fee agreement between Plaintiffs and Higginbothams does not require that any over- arching dispute be determined before the prevailing party of a proceeding arising out of the RPA is permitted to collect attorney fees. Plaintiffs would have this Court find that the express language of the attorney fee provision Plaintiffs and Higginbothams agreed does not apply, but rather the language of Civil Code 1717 does. It is counterintuitive to argue that the rights afforded by the express language of the attorney fee provision is limited by the civil code section cited by Plaintiffs. Civil Code 1717 does not limit a party’s rights to attorney fees pending resolution of the action of its entirety. Rather, the RPA expressly allows for attomey’s fees for the prevailing party to any proceeding arising out of the Agreement. Here, we have a dispute as to the arbitration agreement of the Agreement (or the RPA) and a proceeding related to enforcing those arbitration rights (the instant petition). NNNNNNNNN—Iu—‘flu—It—In‘n—In—a—Afl Higginbothams, should they prevail, are entitled to attomey’s fees for having t0 enforce these WNQMAWNHOOmQGMAWN—‘O rights. Under Plaintiffs’ illogical argument, any contract allowing for anomey’s fees would also prevent a prevailing party from being entitled to attomey’s fees or costs associated with a motion to compel discovery. Civil Code 1717 has been improperly used by Plaintiffs and does not prevent the Higginbothams from being awarded attomeys’ fees in this instance. Plaintiffs rely on the case of Roberts v. Packard, Packard & Johnson. However, Plaintiffs fail to provide any citations to the Roberts case in support of their numerous conclusions based on the “unanimous, well-reasoned opinion.” (Plaintiffs’ Opposition at 7:24- 26.) Plaintiffs spend nearly two pages of their Opposition discussing the veracity and strength of the application of the Roberts case without a single citation to the case. However, Plaintiffs conveniently failed to explain to the Court that one large consideration for the Roberts Court 4 Reply inSuppon of Petition to Compel Arbitration and Motion lo Stay was whether the agreement between the parties was in congruence with Civil Code 1717. (Roberts v. Packard, Packard & Johnson (2013) 217 Cal.App.4th 822, 831.) 1n fact, the Roberts Court specifically concerns itselfwith the language ofthe actual agreement between the parties and finds that the agreement between the parties in the Roberts case had no distinction from the language in Civil Code 1717. (1bid.) Therefore, application of Civil Code \OOONQMAMN— 1717 to their agreement was proper. (Ibid) Such is not the case here. The agreement between the Higginbothams and Plaintiffs has language far different from that of Civil Code 1717. The attorney fee provision that Plaintiffs and Higginbothams entered into includes provision of attorney fees for prevailing parties to any action (as in Civil Code I717), in addition to any proceeding or arbitration. Thus, Plaintiffs cannot use Civil Code 1717 to alter the contractual rights agreed upon in the RPA. D. lf the Petition to Compel Arbitration is Granted, then the Proceeding Should Be Stayed Plaintiffs only argue that the proceedings should not be stayed ifthe petition to compel arbitration is denied. It is clearly a logical, procedural decision to stay these proceedings should the petition to compel arbitration be granted. ll. CONCLUSION NNNNNNNNN————~w—t—Ip—Ip—tu—I It isclear that Plaintiffs and the Higginbothams entered into an agreement within the RPA to arbitrate WQO‘MAWNHocmNQUI-PWNflo the exact type of disputes of which Plaintiffs have complained. Plaintiffs have refused to perform their contractual obligation to arbitrate by attempting to place a condition upon the arbitration, a condition which was neither contemplated nor agreed to when the Arbitration Agreement was entered into. Compelling arbitration does not risk conflicting judgments as the theory of liability alleged against the third-party defendant is dependent upon liability on part of Mr. Higginbotham himself. Civil Code I717 cannot be properly applied to the attorney fee agreement between Plaintiffs and Higginbothams and the express language of the agreement isnot aligned with the language of the Civil Code. /// /// 5 Reply inSupport of Petition to Compel Arbitration and Motion to Stay For these reasons, the court should (l) compel Plaintiffs to submit to the arbitration to which they had previously agreed; (2) stay the related court-action filed by Plaintiffs: and (3) #LAN order Plaintiffs to pay to the Higginbothams $4,435.00 in attorneys fees and costs associated with this petition and motion. Dated: February 14, 2018 Respectfully submitted, OOOONQUI CUTTONE & ASSOCIATES BRIAN . CUTTONE, Attorney for Defendants, KEN AND KATHY HIGGINBOTHAM 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Reply in Support of Petitionto Compel Arbitration and Motion Io Stay PROOF OF SERVICE STATE OF CALIFORNIA ) )ss. AWN COUNTY OF FRESNO ) I am employed in the County of Fresno, State of California. lam over the age 0f I8 21nd not a party t0 the within action; my business address is 5380 N.Fresno Street, Suite102, Fresno, California 937 l0. On February 14, 2018, lserved the foregoing documents(s) described as REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL ARBITRATION, MOTION TO STAY RELATED ACTION, AND MOTION FOR FEES FOR THIS PROCEEDING OOOONQUI on the interested by placing parties in this action (X) a true copy or( )the original thereof enclosedin a sealed envelope addressed as follows: (X) (BY MAIL) l am readily familiar with the firm's practice of collection andprocessing correspondence 11 for mailing. Under that practiceitwould be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaidat Fresno. California,in the ordinary course of business; Iam aware that on motion ofthe party served, service is presumed invalid ifthe postalcancellation date or postage 12 meter date is more than one day after the date of deposit for mailing in this affidavit. 13 ' Mike Chappars, Esquire/ Law Office of Robert C. Abrams/54I2 North Palm Ave, Suite 10L 14 Fresno, CA 93704 ' Marisa L. Balch, Esquire/Wanger Jones Helsley PC/265 E. River Park Circle. Suite 15 310/Fresno, CA 93720 ( ) BY E-MAIL OR ELECTRONIC TRANSMISSION: l caused a copy ofthe documents Io be sent from 16 email address rstasio@cuttonelaw.com to the persons at the e-mail addresses listed below. | did not receive, within a reasonable time after the transmission. any electronic message or other indication that the 17 transmission was unsuccessful. 18 ( ) (BY PERSONAL SERVICE) lcaused such envelope to be delivered by hand to: 19 ( ) (BY FACSIMILE) Ifaxed such document pursuant to Rule 2008. California Rules of Court. The facsimile machine l used complied with Rule 2003, California Rules 0f Court, and no error was 20 machine. Pursuant Rule reported by the to 2008(e), California Rules of Court. the machine printed a transmission record ofthe transmission, a copy of which is attachedto this declaration.The name and 21 facsimile telephone number ofthe person(s) served isas follows: 22 (X) (STATE) l declare under penalty of perjury under the laws of the Stme of California that the foregoingis true and correct. 23 ( ) (FEDERAL) l declare thatIam employed inthe office ofa member ofthe bar ofthis 24 court atwhose direction the servicewas made. 25 Executed on February 14, 20l8, atFresno, California. 26 27 Rebecca Stasio 28 7 Reply in Support 0f Petitionto Compel Arbitration and Motion to Stay