842.) “A\r\nparty required to prove something by a preponderance of the evidence ‘need\r\nprove only that it is more likely to be true than not true.’ \r\nPreponderance of the evidence means ‘“that the evidence on one side\r\noutweighs, preponderates over, is more than, the evidence on the other side,\r\nnot necessarily in number of witnesses or quantity, but in its effect on those\r\nto whom it is addressed.”’ \r\n In other words, the\r\nterm refers to ‘evidence that has more convincing force than that opposed to\r\nit.’ ” ( People ex rel.
(2019) 38 Cal.App.5th 244, 257.) “The trial court sits as the trier of fact,\r\nweighing all the affidavits, declarations, and other documentary evidence, and\r\nany oral testimony the court may receive at its discretion, to reach a final\r\ndetermination.” ( Ruiz,\r\nsupra, 232 Cal.App.4th at p.
(2014) 232 Cal.App.4th 836, 842.) “Once that burden is satisfied, the party\r\nopposing arbitration must prove by a preponderance of the evidence any defense\r\nto the petition.” ( Lacayo v. The party seeking arbitration has the “burden of proving the\r\nexistence of a valid arbitration agreement by a preponderance of the\r\nevidence” ( Ruiz v. Proc., § 1281.2.) Absent\r\na viable defense to enforcement, the court must grant the motion if it\r\ndetermines there is an agreement to arbitrate that has not been rescinded. Plaintiff\r\nXtractor opposed both motions and Defendant Tohid replied to both oppositions.\r\n\r\n \r\n\r\n Defendant’s Motion to Compel Binding\r\nArbitration: GRANTED\r\n\r\nĪ party to an arbitration agreement may seek a court order\r\ncompelling the parties to arbitrate a dispute covered by the agreement. I-M), until August 20, 2021,\r\nwhen Defendant filed its Motion to Quash and Motion for Protective Order. H.) The Parties exchanged emails regarding whether Plaintiff\r\nfollowed procedural requirements in issuing its subpoena for records from J.P.\r\nMorgan Chase, (See Quash Kubish Decl., ¶¶ 17-22, Exs. On\r\nAugust 13, 2021, Defendant Tohid learned, allegedly for the first time, and\r\nonly after receiving a letter from his bank, that Plaintiff Xtractor had issued\r\na subpoena duces tecum for Defendant’s bank records. On\r\nAugust 6, 2021, Tohid filed this formal Motion to Compel Binding Arbitration. (Motion to\r\nQuash and/or Modify Subpoena Duces Tecum and Motion for Protective Order\r\n, Kubish Decl. Morgan Chase for an account belonging to Tohid, and into which, Plaintiff\r\nalleges, Defendant directed Plaintiff’s clients to deposit payments. Pursuant\r\nto this action, Plaintiff then obtained a subpoena duces tecum for bank records\r\nfrom J.P.
(Arbitration Kubish Decl., ¶ 9.) \r\n\r\nĮven\r\nthough Plaintiff filed this complaint on J(alleging four causes of\r\naction against Defendant Tohid and DOES 1-20, including: (1) conversion (2)\r\nfraud and concealment (3) violation of Penal Code section 503 and (4)\r\nconstructive trust), it appears that both parties continued discussing\r\narbitration, even agreeing on June 30, 2021, to engage as Arbitrator, David\r\nHuebner.\r\n\r\n C, D.) Per Defendant, he and\r\nPlaintiff Xtractor (“the Parties” or “Parties”) unsuccessfully mediated the\r\nmatter on April 21, 2021.
On\r\nFebruary 8, 2021, Plaintiff demanded mandatory mediation pursuant to paragraph 17.1\r\nof the NDA. ) In late January 2021, Xtractor determined that\r\nTohid was embezzling from Plaintiff by servicing and invoicing Xtractor clients\r\nwho reached out to Plaintiff for services, in violation of the Agreement.\r\n\r\n (See Motion to Compel Binding\r\nArbitration, Kubish Decl. On\r\nOctober 29, 2019, Tohid signed a Non-Disclosure and Non-Circumvention Agreement\r\n(“NDA”), agreeing that he would not disseminate or use proprietary information he\r\nreceives in the course of his employment belonging to Plaintiff for personal\r\ngain during and after employment with Xtractor.
In\r\nJanuary 2018, Plaintiff Xtractor Depot LLC hired Defendant Usama Tohid as an\r\nengineer and-according to the Complaint-taught him how to perform peer\r\nreviews and verifications of extraction equipment for various industries.\r\n\r\n Case Number: 21STCV22811 Hearing Date: NovemDept: 40