Schelenz v. Miller CA2/7

Filed 11/13/26 Schelenz v. Miller CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN ROLAND E. SCHELENZ, B346224 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24VECV03926) v. SPENCER M. MILLER, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Huey P. Cotton, Judge. Affirmed. Holland & Knight, Sarah Kelly-Kilgore and Zachary J. Watson for Defendant and Appellant. Foley Bezek Behle & Curtis, Aaron L. Arndt, Jordan A. Liebman; Markun Zusman & Compton, David S. Markun, Edward S. Zusman; Berg Law Group and Eric Berg for Plaintiff and Respondent. ________________________  INTRODUCTION Spencer M. Miller appeals from the denial of his motion to compel arbitration of the tort claims alleged against him by Roland E. Schelenz, as an individual and as trustee of the Schelenz Family Trust dated February 3, 1996 (collectively, Schelenz). Miller argues the trial court erroneously ignored a clause in the parties’ agreement he argues delegated the issue of arbitrability to the arbitrator, as well as evidence concerning the parties’ relationship and dispute. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Miller is married to one of Schelenz’s daughters. In or about 2014, Schelenz’s wife was diagnosed with Parkinson’s Disease. Before her diagnosis, she managed her own and Schelenz’s financial affairs. After her diagnosis, Miller, who worked at Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch) as a certified financial advisor, suggested he take over management of the Schelenzes’ finances so Schelenz could focus on caring for his wife. Schelenz agreed and, in 2015, deposited $2.5 million in several accounts at Merrill Lynch. A. The Arbitration Provision Schelenz signed a Client Relationship Agreement when he opened his accounts at Merrill Lynch. The Client Relationship Agreement specified that “New York law governs your agreements and transactions, unless we indicate otherwise.” It also contained an arbitration provision that stated, in pertinent part: “You agree that all controversies that may arise between us shall be determined by arbitration. Such controversies include, 2 but are not limited to, those involving any transaction in any of your accounts with Merrill Lynch, or the construction, performance or breach of any agreement between us, whether entered into or occurring prior, on or subsequent to the date hereof. [¶] Any arbitration pursuant to this provision shall be conducted only before the Financial Industry Regulatory Authority, Inc. (FINRA) . . . and in accordance with the respective arbitration rules then in effect in FINRA . . .” The Client Relationship Agreement defined “you” and “your” as “each person who has agreed to the terms in this Agreement,” namely Schelenz, while “we,” “our” and “us” “refer[red] to Merrill Lynch, Pierce, Fenner & Smith Incorporated, a registered broker-dealer and a wholly owned subsidiary of Bank of America Corporation.” B. Schelenz Files a Claim for Arbitration Under FINRA On June 20, 2024, Schelenz filed a claim for arbitration against Miller and Merrill Lynch pursuant to the arbitration provision and FINRA Rules. Schelenz alleged Miller breached his fiduciary duty to Schelenz as his financial advisor and money manager, and Merrill Lynch was negligent in its duty to supervise and oversee Miller. Schelenz alleged he told Miller “[o]n multiple occasions” that he was risk averse and wanted to use the money in the Merrill Lynch investment account to live on after retirement. As a result, he did not want “a significant portion” of his money in stocks or other such illiquid investments. According to Schelenz, Miller grossly mismanaged the money and misappropriated funds from the Merrill Lynch accounts for his personal use. From 2015 to 2023, “Miller had, among other things, established a joint investment account with Claimant and paid himself personally 3 with the funds that Claimant had invested; cashed out multiple of Claimant’s investment accounts, with significant tax consequences to Claimant, and used the proceeds to either pay himself or to reinvest in other instruments that benefited Miller; and placed more than ninety-percent of Claimant’s funds into illiquid ‘alternative investments’ that not only paid Miller higher commissions but also required that Claimant make routine capital calls to maintain his investment.” Schelenz sought “to recover the return he would have enjoyed had his investments been properly managed, the liquidation of his current investments with Merrill [Lynch], and any other damages that are discovered or are just and proper at the time of arbitration.” C. Schelenz Files a Complaint On August 15, 2024, two months after he filed his arbitration claim, Schelenz filed a complaint against Miller and Bank of America. Schelenz alleged causes of action for conversion, financial elder abuse, and breach of fiduciary duty against Miller, and a cause of action for negligent supervision against Bank of America. In the operative complaint, Schelenz alleged he gave Miller access to his Bank of America accounts, but Miller used these accounts for his own benefit by withdrawing money from Schelenz’s accounts and obtaining multiple loans using Schelenz’s house as collateral. Schelenz estimated Miller withdrew more than $700,000 from his Bank of America accounts to pay for repairs to Miller’s home, to pay Miller’s credit card bills, and to pay for Miller’s personal purchases at various retailers. Schelenz also alleged Miller obtained nearly $4 million in mortgage loans and home equity lines of credit using 4 Schelenz’s home as collateral without his knowledge or permission from 2014 to 2022. These loans were obtained through Bank of America and PHH Mortgage Services. Schelenz alleged he learned of Miller’s financial mismanagement on October 30, 2023, when he sold his home in Westlake Village upon Miller’s suggestion for $1.775 million, and the proceeds from the sale were used to pay off a $736,000 Bank of America mortgage loan and a $500,000 Bank of America home equity line of credit. Schelenz was not aware of and did not authorize these loans. As a result, Schelenz received a fraction of the proceeds of the sale. Schelenz alleged Miller was an employee of Bank of America. Schelenz further alleged Bank of America failed to properly supervise Miller and allowed Miller to continue to “pillage” Schelenz’s accounts even after he submitted a formal complaint to it in October 2023 about Miller’s theft. Schelenz sought economic and punitive damages against Miller as well as attorney fees and costs of suit. D. Miller Moves To Compel Arbitration of Schelenz’s Claims On December 13, 2024, Miller moved to compel arbitration of Schelenz’s complaint pursuant to the arbitration provision in the Client Relationship Agreement and stay the action until arbitration was complete.1 Miller argued the pending FINRA arbitration addressed the same issues of fact and law. According to Miller, Schelenz had agreed to arbitrate “any controversies” that arose out of Miller’s role as Schelenz’s financial advisor. 1 It does not appear Bank of America joined in the motion or moved separately to compel arbitration. It is not a party to this appeal. 5 Although he was not a signatory to the Client Relationship Agreement, Miller asserted he was entitled to compel arbitration because he was a Merrill Lynch employee. Schelenz opposed, arguing, “this action has nothing to do with Merrill [Lynch] or Schelenz’s investment accounts with Merrill [Lynch]. Rather, it concerns Schelenz’s bank accounts with defendant Bank of America and Miller’s abuse of his access to those bank accounts.”2 The trial court denied the motion to compel arbitration. It observed, “[t]he claims herein are not about mismanagement of investment accounts. The claims here are based on Miller and plaintiff’s agreement for Miller to take over day-to-day banking tasks that were once performed by plaintiff’s wife. The accounts in question were specifically Bank of America accounts. It is true that Merrill is a subsidiary of Bank of America, but the FAC gives the impression that the day-to-day banking means checking and savings accounts and not investment accounts with Merrill Lynch. Merrill Lynch is not a party to the action. The complaint also alleges that Miller took out loans secured by plaintiff’s house without consent and without giving plaintiff the proceeds of the loan or using the proceeds for plaintiff’s benefit.” The court did “not read into the agreement the obligation to arbitrate claims against Merrill Lynch’s employees that do not have to do with the services Merrill Lynch provides for plaintiff.” It concluded, “As expeditious as defendant feels it may be to arbitrate these claims in the FINRA proceedings, plaintiff never agreed to do so.” 2 Although Miller states that Schelenz failed to properly serve him with the opposition to the motion to compel arbitration, he does not argue the lack of service is a basis for reversal of the order. 6  Miller timely appealed. DISCUSSION A. Governing Law and Standard of Review3 “Where, as here, the parties to a lawsuit have executed an arbitration agreement, a ‘threshold question . . . presented by every motion or petition to compel arbitration’ is ‘whether the parties’ dispute falls within the scope of that agreement.’ ” (Mondragon v. Sunrun Inc. (2024) 101 Cal.App.5th 592, 601.) “ ‘In determining the scope of an arbitration [agreement], “[t]he court should attempt to give effect to the parties’ intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.” ’ ” (Id. at p. 602, accord, Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.) “The scope of arbitration is, of course, a matter of agreement between the parties,” although “doubts concerning the scope of arbitrable issues are to be resolved in favor of arbitration.” (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323; accord, 3 We consider the threshold question of arbitrability applying California authorities. Although the Client Relationship Agreement stated that New York law governed, neither party asserts New York law governs in this case. (See Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919 [“ ‘ “[G]enerally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state.” ’ ”]; accord Fuentes v. TMCSF, Inc. (2018) 26 Cal.App.5th 541, 547 (Fuentes).) 7 Duran v. EmployBridge Holding Co. (2023) 92 Cal.App.5th 59, 65–66 (Duran) [“California has a strong public policy favoring arbitration and, as a result, ambiguities or doubts about the scope of the arbitration provision should be resolved in favor of arbitration.”].) “The policy favoring arbitration, however, does not apply when unambiguous language shows the parties did not agree to arbitrate all or a part of the dispute.” (Duran, supra, 92 Cal.App.5th at p. 66; accord, Eminence Healthcare, Inc. v. Centuri Health Ventures, LLC (2022) 74 Cal.App.5th 869, 876.) “ ‘ “[W]hile California public policy favors arbitration, ‘ “ ‘there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate.’ ” ’ ” ’ ” (Mar v. Perkins (2024) 102 Cal.App.5th 201, 212 (Mar).) “ ‘ “Whether an arbitration agreement applies to a controversy is a question of law to which the appellate court applies its independent judgment where no conflicting extrinsic evidence in aid of interpretation was introduced in the trial court.” ’ ” (Ahern v. Asset Management Consultants, Inc. (2022) 74 Cal.App.5th 675, 687 (Ahern); accord Rice v. Downs (2016) 248 Cal.App.4th 175, 185 (Rice) [appellate court is “ ‘not bound by the trial court’s construction or interpretation’ ”].)4 4 Schelenz asserts the standard of review in this case is governed by Jones v. Solgen Construction, LLC (2024) 99 Cal.App.5th 1178, 1195–1196, which held: “When a trial court’s order denying arbitration is based on the finding that the appellant failed to carry its burden of proof, the question on appeal is whether that finding is erroneous as a matter of law.” Jones is distinguishable. There, the parties disputed whether the plaintiff, an 80-year-old woman with “almost nonexistent 8 B. The Allegations in This Action Do Not Fall Within the Scope of the Arbitration Provision The express terms of the arbitration provision preclude a finding that Schelenz agreed to arbitrate tort claims that do not involve Merrill Lynch accounts. Under the Client Relationship Agreement, Schelenz agreed to arbitrate “all controversies that may arise” between him and “Merrill Lynch, Pierce, Fenner & Smith Incorporated, a registered broker-dealer and a wholly owned subsidiary of Bank of America Corporation.” The arbitration provision described the “controversies” contemplated by the parties as “includ[ing], but [] not limited to, those involving any transaction in any of your accounts with Merrill Lynch, or the construction, performance or breach of any agreement between us, whether entered into or occurring prior, on or subsequent to the date hereof.” The arbitration provision clearly encompasses all controversies involving Schelenz’s Merrill Lynch accounts or his agreements with Merrill Lynch. It is undisputed that this arbitration provision entitles Miller, as an employee of Merrill technological ability,” electronically signed the arbitration agreement or someone else manipulated her phone. (Id. at pp. 1199, 1201.) Jones concluded the trial court’s finding that the defendants failed to meet their burden of establishing a valid signature, and thus a valid arbitration agreement, was not erroneous as a matter of law. (Id. at p. 1202.) Here, there is no such factual dispute. The only question on appeal is whether the arbitration provision to which Schelenz agreed extends to the claims asserted in his complaint. The standard of review under these circumstances is de novo. (Ahern, supra, 74 Cal.App.5th at p. 687.) 9 Lynch, to participate in the arbitration of Schelenz’s claims that he mismanaged and misappropriated Schelenz’s Merrill Lynch accounts. Indeed, that is the subject of the FINRA arbitration. The arbitration provision, however, does not extend to claims that Miller mismanaged Schelenz’s other financial affairs, including accounts or loans involving Bank of America or PHH Mortgage. Neither Bank of America nor PHH Mortgage are named parties subject to the arbitration provision. Instead, Bank of America is included in the arbitration provision only to describe Merrill Lynch as a “wholly owned subsidiary of Bank of America Corporation.” Nothing in the arbitration provision indicates Bank of America accounts and loans are subject to its terms. We thus conclude the alleged unauthorized withdrawals and loans from Bank of America and PHH Mortgage do not fall within the scope of the arbitration provision. “ ‘[A] nonsignatory who is the agent of a party to a contract containing an arbitration clause may compel the other parties to the contract to arbitrate their claims against him or her for liability arising under the contract . . . but not other claims.’ ” (Fuentes, supra, 26 Cal.App.5th at p. 551.) Put another way, Schelenz “ ‘ “cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” ’ ” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle); accord Mar, supra, 102 Cal.App.5th at p. 212.) Miller argues the trial court erred when it resolved the issue of arbitrability against him in two ways. First, Miller contends the court ignored what he characterizes as a delegation clause in the arbitration provision. Second, Miller contends the court erroneously relied on the allegations in the operative 10 complaint rather than the evidentiary record, which he argues demonstrated that: (1) Miller was an employee and agent of Merrill Lynch; (2) Miller was Schelenz’s financial advisor and money manager at Merrill Lynch; (3) the Client Relationship Agreement contained an enforceable arbitration provision; and (4) Schelenz’s “claims ar[ose] from [Miller’s] alleged conduct as his financial advisor.” We are not persuaded. First, Miller relies on the following language in the arbitration provision to argue arbitrability should be delegated to the arbitrator: “Such controversies include, but are not limited to, those involving . . . the construction, performance or breach of any agreement between us . . .” (Emphasis omitted.) Generally, “ ‘parties may agree to have an arbitrator decide not only the merits of a particular dispute but also “ ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.” ’ [Citation.] But ‘[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is “clea[r] and unmistakabl[e]” evidence that they did so.’ ” (Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 772; accord Beco v. Fast Auto Loans, Inc. (2022) 86 Cal.App.5th 292, 303–305.) “When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.” (Henry Schein, Inc. v. Archer & White Sales, Inc. (2019) 586 U.S. 63, 71 (Schein).) Miller has not demonstrated by “clear and unmistakable” evidence that Schelenz and Merrill Lynch, the signatories of the Client Relationship Agreement, agreed to delegate to the arbitrator the issue of whether claims between Schelenz and Miller about Bank of America accounts and loans involving Bank 11 of America and PHH are arbitrable. By its own terms, the purported delegation provision applies only to controversies involving “any agreement between us,” meaning between Merrill Lynch and Schelenz.5 (See Pinnacle, supra, 55 Cal.4th at p. 236; Moritz v. Universal City Studios LLC (2020) 54 Cal.App.5th 238, 246 (Moritz).) Moritz, supra, 54 Cal.App.5th at page 246 is instructive. It concluded, “No authority permits sending a matter to arbitration simply because the same parties agreed to arbitrate a different matter.” (Ibid.) In Moritz, the producers of a movie franchise sued the movie studio regarding an oral agreement for them to produce a spinoff series. The movie studio moved to compel arbitration based on the parties’ previous contracts that contained arbitration provisions delegating arbitrability to the arbitrator. (Id. at p. 240.) The studio relied on Schein, supra, 586 U.S. at page 71 to argue that only an arbitrator can determine whether the arbitration clause should be enforced “ ‘even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.’ ” (Moritz, at p. 248.) Moritz rejected that argument, reasoning that “Schein presupposes a dispute arising out of the contract or transaction, i.e., some minimal connection between the contract and the dispute.” (Moritz, supra, 54 Cal.App.5th at p. 248 [disapproving 5 For purposes of our analysis, we assume without deciding that the language cited by Miller is a delegation clause. We therefore need not address whether the conclusions reached in Tuminello v. Richards (9th Cir. 2013) 504 Fed.Appx. 557, 558 and Revis v. Schwartz (2020) 140 N.Y.S.3d 68, 77–78 regarding the same language are persuasive. 12 “argument that an arbitration provision creates a perpetual obligation to arbitrate any conceivable claim that [the producers] might ever have against [the studio]”].) “An arbitration agreement is tied to the underlying contract containing it, and applies ‘only where a dispute has its real source in the contract. The object of an arbitration clause is to implement a contract, not to transcend it.’ ” (Moritz, at p. 246, quoting Litton Fin. Printing Div. v. NLRB (1991) 501 U.S. 190, 205.) Miller has presented no authority that permits sending this matter to arbitration simply because Schelenz and Merrill Lynch agreed to arbitrate a different matter. As stated, the arbitration provision and the purported delegation clause apply only to controversies involving “any agreement between” Merrill Lynch and Schelenz. Miller seeks to transcend this agreement by requiring Schelenz to arbitrate his claims involving Bank of America accounts and PHH loans. The law does not require the issue of arbitrability to be delegated to the arbitrator under these circumstances. Second, Miller argues the trial court was required to, but did not, consider the evidentiary record to reach its decision. Specifically, Miller contends the evidence demonstrates the Bank of America accounts alleged in Schelenz’s complaint are actually “Merrill Lynch: Bank of America Corporation” accounts. According to Miller, “the only accounts in the evidentiary record to which Appellant had access are these Merrill Lynch accounts” and not any Bank of America accounts. In support, Miller cites the signed Client Relationship Agreement he proffered in connection with the motion to compel arbitration. Miller asserts the court may not simply accept the unverified allegations in the complaint; Schelenz must instead prove via evidence that Miller 13 accessed Bank of America accounts and not Merrill Lynch: Bank of America Corporation accounts. Under this burden-shifting analysis, Miller contends “[t]he trial court should have ordered this matter to arbitration because respondent has never offered evidence establishing that appellant’s alleged mismanagement of respondent’s finances are wholly unconnected to Merrill Lynch, as would be necessary to avoid arbitration.” As a preliminary matter, Miller ignores the allegations that he obtained approximately $4 million in loans from Bank of America and PHH Mortgage over a 10-year period using Schelenz’s home as collateral without Schelenz’s knowledge or permission. Miller does not contend these loans were obtained through Merrill Lynch rather than Bank of America or PHH Mortgage. At a minimum, the arbitration provision does not extend to this alleged conduct. At any rate, the only extrinsic evidence Miller proffers to establish that the banking accounts at issue in this litigation are Merrill Lynch accounts rather than Bank of America accounts are the signed Client Relationship Agreements. But that is evidence that Schelenz had Merrill Lynch accounts, which Schelenz alleges in the complaint he opened based on Miller’s urging. The Client Relationship Agreements are not, however, evidence that Schelenz only had Merrill Lynch accounts or that his allegations that Miller looted his Bank of America accounts are mistaken. Miller, for example, did not produce evidence through a sworn affidavit or declaration that Schelenz held no 14 Bank of America accounts or that as Schelenz’s financial advisor Miller only had access to Merrill Lynch accounts.6 Additionally, Miller misstates his burden of proof in this case. As the moving party seeking arbitration, he had the burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal); accord, Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165; see Code Civ. Proc., § 1281.2 [a trial court must grant a motion or petition to compel arbitration only “if it determines that an agreement to arbitrate the controversy exists”]; see also Code Civ. Proc., § 1290.2 [the court makes this determination in a summary process].) Rosenthal explained, “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the 6 At oral argument, Miller, for the first time, directed the Court to a section in the Client Relationship Agreement that states, “Cash may be ‘swept’ to bank accounts with FIA Card Services, N.A. and/or Bank of America California, N.A. under the MLBD Program, where it may earn interest.” Miller asserted this is additional evidence the alleged Bank of America accounts fall within the parameters of the Client Relationship Agreements. “An appellate court is not required to consider any point made for the first time at oral argument.” (Kinney v. Vaccari (1980) 27 Cal.3d 348, 356, fn. 6; accord, Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1311, fn. 4 [“contentions raised on appeal for the first time at oral argument are generally [forfeited]”].) But even considering the argument on the merits, the language Miller cites only states that cash “may be” swept into a Bank of America account or a FIA Card services account, and there is no evidence that actually occurred here. 15 petition raises a defense to enforcement—either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b))—that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal, supra, 14 Cal.4th at p. 413.)7 Although Miller provided evidence of a written arbitration agreement, he did not prove that the agreement encompassed the allegations in the complaint. The court properly examined the agreement and Schelenz’s operative complaint to determine whether “an agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2; see Rice, supra, 248 Cal.App.4th at 7 Miller relies on EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1321 to argue, “[The] ‘burden is on the plaintiff, the party opposing arbitration, to show that the arbitration clause cannot be interpreted to cover the claims in the [second amended complaint].” We decline to follow EFund to the extent it conflicts with the California Supreme Court’s opinion in Rosenthal, supra, 14 Cal.4th at page 413. (See also Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [“The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.”].) In all events, EFund does not stand for the proposition that the party opposing arbitration is required to present evidence that the arbitration clause cannot be interpreted to cover the claims in the complaint. EFund instead confirms that the court must compare the language of the arbitration clause with the claims in a complaint to determine whether the latter are encompassed by the former. (See EFund, supra, at p. 1321.) 16 p. 185 [“ ‘In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration.’ ”]; Weeks v. Crow (1980) 113 Cal.App.3d 350, 353 [same].) At this stage, Schelenz bore no burden to produce evidence of a defense, such as fraud, waiver, or revocation because he did not raise these defenses. Miller relies on a number of cases to argue the trial court could not consider only Schelenz’s unverified complaint and had to make its ruling based on evidence in the record. These cases are distinguishable. In each, the courts relied on the procedure set out in Rosenthal to hold that the party moving for arbitration had met its threshold burden to prove the existence of an arbitration agreement encompassing the parties’ dispute but that the parties opposing arbitration presented no evidentiary support for their defenses of fraud, waiver, or revocation. (See Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 762 [plaintiffs argued the arbitration was void due to fraud in the execution of the underlying agreement but failed to provide evidence of fraud]; Owens v. Intertec Design, Inc. (1995) 38 Cal.App.4th 72, 74–75 [“It is undisputed an agreement to arbitrate the present controversy exists” but the opposing party provided no evidence of revocation]; Strauch v. Eyring (1994) 30 Cal.App.4th 181, 187 [“We conclude that the trial court erred by denying the petition on the ground of fraud without any evidentiary support”], disapproved on different grounds by Rosenthal v. Great Western Financial Services Corp. (1996) 14 Cal.4th 394, 407.) By contrast, Miller did not meet his burden to present prima facie evidence of an arbitration agreement covering the parties’ dispute. And Schelenz did not assert a 17 defense of fraud, waiver, or revocation for which he was required to provide evidence. Lastly, in a footnote in the opening brief, Miller asserts Schelenz was estopped from opposing arbitration because his claims in the FINRA arbitration and this matter are “ “inherently inseparable.’ ” We decline to consider this argument because Miller has forfeited the issue on appeal. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419–420 [“An appellant cannot bury a substantive legal argument in a footnote and hope to avoid waiver of that argument” on appeal]; Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.) DISPOSITION The order denying arbitration is affirmed. Schelenz may recover his costs on appeal. MARTINEZ, P. J. We concur: FEUER, J. STONE, J. 18