Kerlan-Jobe Ortho. Clinic v. Cedars Sinai Med. Care Found. CA2/5

Filed 11/2/26 Kerlan-Jobe Ortho. Clinic v. Cedars Sinai Med. Care Found. CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE THE KERLAN-JOBE B348166 ORTHOPAEDIC CLINIC et al., (Los Angeles County Plaintiffs and Respondents, Super. Ct. No. 25STCV01015) v. CEDARS SINAI MEDICAL CARE FOUNDATION et al., Defendants and Appellants. APPEALS from an order of the Superior Court of Los Angeles County, Maureen Duffy-Lewis, Judge. Vacated and remanded. McDermott Will & Schulte, Thomas A. Ryan, Jason D. Strabo, and Julian L. André for Defendants and Appellants Cedars-Sinai Medical Care Foundation, Richard Jacobs, Jill Martin, and Mark Vrahas.  Quinn Emanuel Urquhart & Sullivan, Michael E. Williams, Chelsea Anderson, and Brantley I. Pepperman for Defendant and Appellant Bert Mandelbaum. Rutan & Tucker, Steven A. Nichols, and Mary Christine Brady for Defendant and Appellant Santa Monica Orthopaedic and Sports Medicine Group. Norton Rose Fulbright, Brian A. Sun, Abigail Urquhart, and Alex Scandroli; Liang Ly and Jason Liang; Byrne & Nixon and Daniel V. Nixon; Shegerian & Associates, Mahru Madjidi, and Bryan Kirsh for Plaintiffs and Respondents. 2  Cedars Sinai Medical Care Foundation (Cedars) entered into a professional services agreement (and related agreements) with Kerlan-Jobe Orthopaedic Clinic in 2014. The agreements include arbitration provisions. Nearly a decade later, Cedars terminated the professional services relationship, whereupon the clinic and two of its shareholder physicians sued Cedars, various individuals, and another competing orthopedic practice. The trial court ordered two of the clinic’s causes of action against Cedars to arbitration but declined to compel arbitration of the remaining 17 claims. We are asked to decide whether arbitration of any or all the remaining claims should have been ordered; the question turns on issues of whether the parties delegated arbitrability questions to the arbitrator, which parties are bound by or may enforce the relevant agreements, and which causes of action come within the scope of the pertinent arbitration provisions. I. BACKGROUND Plaintiffs are the Kerlan-Jobe Orthopaedic Clinic, a Medical Group, Inc., Kerlan-Jobe, LLC,1 Daniel Kharrazi, M.D. (Dr. Kharrazi), and Ronald Kvitne, M.D. (Dr. Kvitne) (collectively, plaintiffs). Defendants are Cedars, Richard Jacobs (Jacobs), Jill Martin (Martin), Mark Vrahas, M.D. (Dr. Vrahas), Bert Mandelbaum, M.D. (Dr. Mandelbaum), and the Santa Monica Orthopaedic and Sports Medicine Group, a Medical Group, Inc. (SMOG) (collectively defendants).2 1 We refer to the Kerlan-Jobe Orthopaedic Clinic, a Medical Group, Inc. and Kerlan-Jobe, LLC interchangeably and collectively as Kerlan-Jobe. 2 We refer to Cedars, Jacobs, Martin, and Dr. Vrahas as the Cedars defendants. The Cedars defendants’ request for judicial 3  A. Contractual Relationships Established in 2014 Plaintiffs characterize Kerlan-Jobe as “one of the leading sports medicine and orthopaedic surgery centers in the world.” Dr. Kharrazi and Dr. Kvitne are among its physician shareholders. In late 2014, Kerlan-Jobe entered into three agreements with Cedars: a physicians’ services agreement dated October 1, 2014, (the service agreement); a purchase agreement dated September 1, 2014, (the purchase agreement); and a service mark license agreement dated October 1, 2014, (the license agreement). The service agreement provides, among other things, that Kerlan-Jobe’s physicians were to provide professional medical services in association with Cedars. The service agreement recites that it was “part of a more comprehensive strategic alliance . . . to be undertaken in and around Los Angeles County and Orange County” between Cedars and Kerlan-Jobe, SMOG, another entity, and their physician shareholders. This strategic alliance contemplated “the provision of certain management services . . . by Institute for Sports Sciences, LLC [(the Institute)], a recently formed joint venture initially owned by [Cedars-Sinai Medical Center], [another entity,] and the respective physician shareholders of [Kerlan-Jobe] and SMOG . . . .” The service agreement was to be effective for “an initial term of approximately ten (10) years commencing on the notice of documents from other arbitration and litigation proceedings is denied. (See, e.g., Center for Biological Diversity v. Department of Fish & Wildlife (2017) 17 Cal.App.5th 1245, 1258, fn. 8.) 4 [e]ffective [d]ate [(i.e., September 1, 2014)] and ending on September 30, 2024, unless earlier terminated . . . .” The service agreement would also “automatically renew[ ] for ten (10) additional successive one (1) year terms.” Both Cedars and Kerlan-Jobe were entitled to terminate the service agreement without cause “[a]t any time after the first ten (10) years of this [a]greement . . . upon eighteen (18) months’ prior written notice to the other party.”3 The purchase agreement similarly refers to Cedars’s “comprehensive strategic alliance” and provides for Cedars’s purchase of certain tangible and intangible assets of Kerlan-Jobe for $14,280,000. The license agreement refers to both the service agreement and the purchase agreement and authorizes Cedars’s use of Kerlan-Jobe’s trademarks and certain other intellectual property. The license agreement automatically terminates upon termination of the service agreement—with a 12-month “transition period” during which Cedars may continue to use Kerlan-Jobe’s trademarks. B. Cedars’s Notice of Termination of the Contractual Relationship In March 2023, Cedars sent Kerlan-Jobe notice of its “intent to not renew the [service agreement] after the initial term 3 Although plaintiffs allege in their verified complaint that “each of Kerlan-Jobe’s 23 physician-shareholders executed the [service agreement],” neither of the two copies of the service agreement included in the appellate record includes their signatures. Instead, the only Kerlan-Jobe signature is by Dr. Ralph A. Gambardella, “Chairman and President.” 5 ends on September 30, 2024.” Cedars took the position that this notice conformed to the service agreement’s requirement that it provide 18 months’ advance notice of the termination of the contractual relationship. Cedars and Kerlan-Jobe subsequently entered into an extension to the service agreement dated September 30, 2024, which extended the termination date from October 1, 2024, to November 1, 2024. This extension recited that Cedars was in negotiations with SMOG to restate their service agreement, with SMOG “reorganiz[ing] to include [Kerlan-Jobe] shareholders” as shareholders, partners, and surgeons of SMOG. The extension document further states that, with a handful of exceptions, each of Kerlan-Jobe’s physicians had received an offer of employment with SMOG and any physicians declining the offer would no longer have access to Cedars’s facilities after November 1, 2024. As we shall discuss, Drs. Kharrazi and Kvitne dispute Cedars’s interpretation of the service agreement’s termination provisions and allege the aforementioned extension of the service agreement was part of a wrongful scheme by defendants to wrest Kerlan-Jobe away from its physician shareholders. C. Plaintiffs’ Lawsuit Plaintiffs filed suit in January 2025. In their verified complaint, plaintiffs characterize the service agreement as effecting a “de facto merger” between Kerlan-Jobe and SMOG, which the complaint describes as “a competing and substantially inferior sports medicine practice run by [Dr.] Mandelbaum.” Plaintiffs allege that, “[b]eginning in 2013, certain members of [Cedars’s] executive leadership, such as . . . Jacobs (Executive Vice President of Health Systems), . . . Martin (Executive Vice 6 President of Medical Networks), and . . . [Dr. Vrahas] (Chair of Orthopaedic Surgery), have and continue to conspire with . . . [Dr.] Mandelbaum, who serves as Chair of [SMOG], to drain Kerlan-Jobe of its talent and transfer its assets to [Cedars] for pennies on the dollar.” Among other things, plaintiffs allege Dr. Mandelbaum was instrumental in persuading Kerlan-Jobe’s former leadership and physicians to accept the service agreement, effectively “ced[ing] substantial control of the practice to [Cedars], and by extension, SMOG.” Plaintiffs additionally allege Cedars made “undisclosed side-deals” with Kerlan-Jobe’s former leadership. With the service agreement in effect, defendants allegedly “demand[ed] all patient services, surgeries, and referrals be performed through [Cedars’s] facilities or practitioners only” (which was not required under the agreement) and, when some physicians refused to comply, defendants “promote[d] the fiction that Kerlan-Jobe was unprofitable to [Cedars] and would soon be insolvent absent a merger with SMOG.” Plaintiffs further allege Drs. Kharrazi and Kvitne were harassed for conducting their practice in a manner that did not always maximize revenues for Cedars. Among other things, defendants allegedly sought to remove them from Kerlan-Jobe, made token offers of employment with unjustifiably low compensation, and unjustifiably questioned Dr. Kvitne’s physical ability to practice. Plaintiffs contend Cedars was not entitled to give notice of its intent to terminate the service agreement until after the initial 10-year term expired—essentially reading the service agreement to provide for a 10-year term plus an 18-month wind- down period. Plaintiffs allege defendants used their premature termination of the service agreement as leverage to induce most 7 Kerlan-Jobe physicians to defect to SMOG. Defendants also allegedly used Kerlan-Jobe’s confidential compensation information to lure those physicians to SMOG. Plaintiffs further allege Cedars wrongfully continued to use Kerlan-Jobe’s intellectual property despite the purported termination of their relationship. Drs. Kharrazi and Kvitne and the one other physician remaining at Kerlan-Jobe reconstituted the board of directors and attempted to negotiate an interim service agreement with Cedars, but Cedars allegedly failed to negotiate in good faith. Defendants’ alleged failure to abide by the service agreement’s 18-month wind-down period resulted in plaintiffs being denied access to services required for patient care; defendants then allegedly attempted to steer some of these patients to defendants’ care. Having just recited the complaint’s allegations in broad strokes, we now summarize the 19 causes of action alleged, which we group according to the plaintiffs and defendants involved. All plaintiffs allege causes of action against all defendants for civil conspiracy (first cause of action); aiding and abetting breach of fiduciary duty (second cause of action); violation of the Unfair Competition Law (UCL), Business and Professions Code section 17200 et seq. (eighth cause of action); and intentional and negligent interference with prospective economic advantage (tenth and eleventh causes of action). All plaintiffs allege causes of action against Cedars for breach of contract (twelfth cause of action); breach of the implied covenant of good faith and fair dealing (thirteenth cause of action); violation of Penal Code section 496 (sixteenth cause of action); unjust enrichment (seventeenth cause of action); 8 injunctive relief (eighteenth cause of action); and declaratory relief (nineteenth cause of action). Kerlan-Jobe alleges causes of action against all defendants for tortious interference with contractual relations (ninth cause of action); trademark dilution in violation of Business and Professions Code section 14247 (fourteenth cause of action); and conversion (fifteenth cause of action). Drs. Kharrazi and Kvitne allege causes of action against all defendants for retaliation in violation of Labor Code section 1102.5 (third cause of action); retaliation in violation of Health and Safety Code section 1278.5 (fourth cause of action); retaliation in violation of Business and Professions Code section 2056 (fifth cause of action); violation of California’s anti-kickback statute, Business and Professions Code section 650 (sixth cause of action); and violation of the Cartwright Act, Business and Professions Code section 17000 et seq. (seventh cause of action). D. Plaintiffs’ Ex Parte Application for a Temporary Restraining Order Shortly after filing suit, plaintiffs sought a temporary restraining order. The appellate record does not include the ex parte application for the TRO or the opposition thereto, but it does include a reporter’s transcript from the hearing and a minute order denying the application for reasons stated at the hearing. As summarized by the trial court, plaintiffs sought an order requiring Cedars “to assist or support the [p]laintiff[s] in treating patients, both existing and new, including providing access to defendant’s facilities in scheduling and billing and the like” as well as “expedited discovery.” The trial court determined plaintiffs did not establish their entitlement to the mandatory 9 relief they sought. The trial court also “note[d] that it seems relatively clear . . . , and probably not even subject to dispute, at least as is reflected in the papers, that the dispute between the parties is subject to mandatory arbitration,” which limited the provisional remedies available to plaintiffs. E. Defendants’ Motions to Compel Arbitration 1. Overview of dispute resolution and arbitration provisions a. Service agreement The service agreement includes a multi-paragraph “Resolution of Disputes” section. This section defines a “[d]ispute” to mean “any disagreement, dispute, or claim . . . between the parties with respect to the enforcement or interpretation of this [a]greement or any specific terms and provisions set forth in this [a]greement . . . .” (The language most pertinent to this appeal is italicized.) In the event of a dispute, the parties are required to meet and confer and, if the dispute is not resolved, to “submit such [d]ispute to mandatory arbitration conducted by Judicial Arbitration and Mediation Services, Inc. (‘JAMS’) . . . .” The arbitration “shall be conducted . . . in accordance with the commercial arbitration rules and procedures of JAMS to the extent such rules and procedures are not inconsistent with [the service agreement’s arbitration provision],” and “[i]n the event of a conflict,” the service agreement’s arbitration provision governs. One of the JAMS rules assigns questions of arbitrability to the arbitrator to decide.4 4 On our own motion, we take judicial notice of the current JAMS Comprehensive Arbitration Rules & Procedures available 10  The service agreement also establishes rules relating to selection of arbitrators, discovery, and awards and fees and costs, and provides that “[t]he substantive internal law (and not the conflict of laws) of the State of California shall be applied by the arbitrator . . . .” Another section of the agreement provides that it “shall be governed by, construed, and enforced in accordance with the laws of the State of California.” Other sections of the service agreement concerning preservation of confidential information provide that, “[n]otwithstanding the dispute resolution provisions . . . which emphasize mediation and arbitration,” the remedy at law will be inadequate for breach of the confidentiality provisions and Cedars and Kerlan-Jobe “shall be entitled to an injunction, both preliminary and final, and any other appropriate equitable relief” to enforce the confidential information provisions. at <https://www.jamsadr.com/rules-comprehensive-arbitration> (as of July 8, 2026). (Evid. Code, §§ 452, subd. (h), 459, subd. (a).) We further take judicial notice of the JAMS Comprehensive Arbitration Rules & Procedures effective July 1, 2014, available at <https://jamsadr.widen.net/s/mjlxs9rrkm/jams_comprehensive_ar bitration_rules-2014> (as of July 14, 2026). Rule 11(b) of the JAMS rules (identical in 2014 and now) provides: “Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation[,] or scope of the agreement under which [a]rbitration is sought, and who are proper [p]arties to the [a]rbitration, shall be submitted to and ruled on by the [a]rbitrator. The [a]rbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.” 11  A severability provision in the service agreement provides that “[i]f any of the provisions, or portions thereof, of this [a]greement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected.” b. Purchase agreement The purchase agreement includes an arbitration provision substantially similar to the one in the service agreement. The purchase agreement defines a dispute to include “any controversy, claim, dispute, disagreement[,] or allegation of breach [that] arises relating to this [a]greement” and requires disputes that cannot be resolved among the parties to be submitted to arbitration conducted by JAMS. JAMS rules and procedures apply except to the extent that they are in conflict with the purchase agreement, which, like the service agreement, sets forth rules relating to the selection of arbitrators, discovery, and awards and fees and costs, and provides that “[t]he substantive internal law (and not the conflict of laws) of the State of California shall be applied by the arbitrator . . . .” Another section of the purchase agreement includes a California choice of law provision. The purchase agreement also provides that “[n]otwithstanding any other provision set forth in [the purchase agreement], with respect to the enforcement of any term of [the purchase agreement] for which monetary damages would be inadequate, either [p]arty shall be entitled to seek appropriate equitable relief to enforce its rights under [the purchase agreement], without engaging in the [dispute resolution process]. 12 Such right to equitable relief shall be in addition to any arbitration conducted and resolution reached . . . .” c. License agreement The license agreement’s arbitration provision defines “[d]ispute” to mean “any disagreement, dispute, or claim [that] arises between the parties with respect to the enforcement or interpretation of this [a]greement or any specific terms and provisions set forth in this [a]greement . . . .” If the parties are unable to resolve a dispute, they “shall submit such [d]ispute to mandatory arbitration conducted by [JAMS],” with JAMS rules to apply to the extent they do not conflict with the license agreement. The arbitration section provides “[t]he substantive internal law (and not the conflict of laws) of the State of California shall be applied by the arbitrator” and a separate section includes a California choice of law provision. The license agreement further provides, beneath a heading “Remedies,” that Cedars “acknowledge[s] that money damages alone may not be an adequate remedy for any breach . . . of any provision of this [a]greement” and Cedars therefore “agree[s] and consent[s] that [Kerlan-Jobe] shall have the right to immediately seek injunctive relief prohibiting the breach of this [a]greement.” 2. Defendants’ Motions The Cedars defendants moved to compel arbitration of all claims against them pursuant to the arbitration provisions in the service agreement, the license agreement, and the purchase agreement. They argued the parties delegated questions concerning the scope of the arbitration agreements to the arbitrator and, in any case, all of plaintiffs’ claims arise from, and 13 are inextricably intertwined with, the agreements between Kerlan-Jobe and Cedars. They further argued the individual plaintiffs could be compelled to arbitrate their claims under the doctrine of equitable estoppel and claims against the nonsignatory individual defendants were subject to arbitration by virtue of equitable estoppel too—and because those defendants are agents of Cedars. Dr. Mandelbaum joined the Cedars defendants’ motion and separately argued each of plaintiffs’ 13 causes of action against him arise out of Kerlan-Jobe’s agreements with Cedars. He further argued he is entitled to enforce the arbitration provisions as a nonsignatory under the doctrine of equitable estoppel and because he is alleged to have acted as an agent of Cedars. SMOG joined the Cedars defendants’ motion and Dr. Mandelbaum’s notice of joinder. SMOG similarly argued it is entitled to enforce the arbitration provisions under the doctrine of equitable estoppel and because plaintiffs allege SMOG is an alter ego or agent of Cedars. F. Plaintiffs’ Opposition Plaintiffs filed a separate opposition to each of the three motions to compel arbitration. With respect to the Cedars defendants, plaintiffs conceded their claims against Cedars for breach of contract and breach of the implied covenant of good faith and fair dealing must be arbitrated but plaintiffs argued the 17 other “non-contract related claims plainly fall outside the ambit of the arbitration provisions” because they “arise from the systematic retaliation and predatory business practices the [d]efendants engineered as they worked to undermine (and later implode) 14 the . . . partnership between [Kerlan-Jobe] and Cedars.” Plaintiffs contended that despite the incorporation of JAMS rules that delegate questions of arbitrability to the arbitrator, the lack of a clear and unmistakable delegation of such arbitrability questions in the pertinent agreements meant the trial court should decide arbitrability. Plaintiffs further argued the Cedars defendants ignored the agreements’ “express carve out for equitable relief,” which plaintiffs sought with respect to several claims. In any case, plaintiffs argued, equitable estoppel did not make the arbitration agreements enforceable by the individual defendants or against the individual plaintiffs as to claims unrelated to the agreements and the individual defendants could not enforce the agreements under an agency theory for the same reason. With respect to Dr. Mandelbaum and SMOG, plaintiffs argued they could not enforce the arbitration agreements either as alleged co-conspirators or agents of Cedars and, even if they could, none of the causes of action alleged against them come within the scope of the arbitration provisions. G. The Trial Court’s Ruling The trial court ordered “[b]oth contract causes of action, number 12 and number 13” to arbitration. (As we have already mentioned, these causes of action were asserted by all plaintiffs against Cedars only.) The trial court ordered “[a]ll other claims . . . stayed” and “stay[ed] the case in its entirety.” The trial court did not explain the rationale for its ruling. 15  II. DISCUSSION All defendants noticed appeals from the trial court’s ruling, and each argues all causes of action against them should have been ordered to arbitration. They are correct that a number of additional claims should have been ordered to arbitration—but not all of them. On the procedural questions raised by this appeal, plaintiffs are right about who decides arbitrability but defendants are right about who can invoke and enforce the arbitration provisions. A delegation of arbitrability questions to an arbitrator rather than a court must be clear and unmistakable (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892) and here, it isn’t. Even assuming the relevant agreements’ incorporation of JAMS rule 11(b) might suffice, the service agreement’s severability provision that expressly contemplates a role for courts undercuts any possibility of a clear and unmistakable delegation. As for enforceability, the arbitration agreements may be enforced by the nonsignatory defendants and against the individual plaintiffs under the doctrine of equitable estoppel. Moving from procedure to substance, we hold most of the causes of action (13 of the 17 not already ordered to arbitration) are within the scope of the agreements and should have been ordered to arbitration because these 13 causes of action generally rely on plaintiffs’ interpretation of the service agreement or the license agreement. The remaining four causes of action, however, are not within the scope of the relevant arbitration provisions because they implicate defendants’ allegedly wrongful interactions with other Kerlan-Jobe physicians; insofar as the 16 agreements between Cedars and Kerlan-Jobe are mentioned in connection with those claims, it is only for context. A. Plaintiffs’ Motion to Dismiss the Appeals Plaintiffs argue we should dismiss the appeals without reaching the merits. We decline, for reasons we now explain. The right to appeal is wholly statutory. (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) As pertinent here, Code of Civil Procedure section 1294 provides “[a]n aggrieved party may appeal from: [¶] (a) [a]n order dismissing or denying a petition to compel arbitration. . . .”5 Plaintiffs argue the trial court did not expressly dismiss or deny defendants’ motions to compel arbitration as to the 17 causes of action it did not send to arbitration—rather, the court merely stayed these causes of action. There is nothing in the appellate record, however, to indicate the trial court intends to make a further ruling on the motions at a later date. (Indeed, the stay suggests the contrary.) The only reasonable construction of the trial court’s order is as a partial grant of Cedars’s motion to compel arbitration and a full denial of the remaining defendants’ motions to compel arbitration. The order thus falls squarely within the text of section 1294, subdivision (a) with respect to every defendant except Cedars.6 5 Undesignated statutory references that follow are to the Code of Civil Procedure. 6 Plaintiffs suggest section 1294, subdivision (a)’s provision that perfecting an appeal “shall not automatically stay any proceedings in the trial court during the pendency of the appeal” reflects the Legislature’s “frustration with litigants gaming the statute even when no contractual right to arbitrate exists.” Thus, 17  As to Cedars, plaintiffs argue an ordering granting a motion to compel arbitration in part and denying it in part is not appealable under section 1294. They may be right about that, although some courts have decided appeals from trial court orders denying arbitration of some but not all causes of action without confronting the text of section 1294, subdivision (a). (See, e.g., Vaughn v. Tesla, Inc. (2023) 87 Cal.App.5th 208, 215; Muller v. Roy Miller Freight Lines, LLC (2019) 34 Cal.App.5th 1056, 1061.) But here, where the trial court’s order as to other defendants is obviously appealable and where the facts and issues are often intertwined, we will exercise our discretion—at Cedars’s request—to treat its appeal as a petition for a writ of mandate insofar as it is necessary to fully resolve the issues before us. (Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 160 [writ review of orders directing parties to arbitrate is available in unusual circumstances or exceptional situations].) B. The Parties Did Not Clearly and Unmistakably Delegate Questions of Arbitrability to the Arbitrator “‘[C]ourts presume that the parties intend courts, not arbitrators, to decide . . . disputes about “arbitrability,” . . . such as “whether the parties are bound by a given arbitration clause,” or “whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.”’ [Citation.] plaintiffs contend, nonsignatories have no right to appeal the denial of a motion to compel arbitration. This argument is self- defeating. To the extent this provision of section 1294, subdivision (a) is intended to disincentivize appeals by nonsignatories seeking to delay litigation, it falls short of proscribing such appeals. 18 However, ‘parties can agree to arbitrate “gateway” questions of “arbitrability,” such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.’ [Citation.]” (Aanderud, supra, 13 Cal.App.5th at 891.) “‘There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. [Citation.] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.’ [Citations.] The ‘clear and unmistakable’ test reflects a ‘heightened standard of proof’ that reverses the typical presumption in favor of the arbitration of disputes. [Citation.]” (Aanderud, supra, 13 Cal.App.5th at 892.) Defendants contend plaintiffs delegated questions concerning the scope of the arbitration agreements to the arbitrator because each of the relevant agreements incorporates the JAMS rules. As we have already mentioned in the margin, JAMS rule 11(b) provides “[j]urisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.” Some courts have held this sort of incorporation by reference can qualify as a “clear and unmistakable” delegation of authority to decide questions of arbitrability. (See, e.g., Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413, 1442- 1443 [incorporation of earlier version of JAMS rule delegating arbitrability issues to arbitrator was clear and unmistakable]; 19 Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1123 [“By incorporating [American Arbitration Association (AAA) rules] into their agreement, the parties clearly evidenced their intention to accord the arbitrator the authority to determine issues of arbitrability”].) Other courts have disagreed, especially with respect to unsophisticated parties.7 (See, e.g., Gostev v. Skillz Platform, Inc. (2023) 88 Cal.App.5th 1035, 1052 [“the incorporation by reference of AAA Commercial Arbitration Rules does not provide clear and unmistakable evidence the parties intended to delegate to the arbitrator the question of unconscionability in this case”]; Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 790 [“while the incorporation of AAA rules into an agreement might be sufficient indication of the parties’ intent in other contexts, we seriously question how it provides clear and unmistakable evidence that an employer and an employee intended to submit the issue of the unconscionability of the arbitration provision to the arbitrator, as opposed to the court”].) We will assume just for the sake of argument that lack of sophistication among plaintiffs is not an obstacle to enforcing the delegation provision found in the JAMS rules. Still, “‘[e]ven broad arbitration clauses that expressly delegate the enforceability decision to arbitrators may not meet the clear and 7 Plaintiffs quote Mondragon v. Sunrun Inc. (2024) 101 Cal.App.5th 592 as holding “the bare incorporation of [arbitration] rules is insufficient to prove the parties’ ‘clear and unmistakable’ intent to delegate all questions of arbitrability to the arbitrator.” This language, however, appears nowhere in the opinion, and plaintiffs should exercise greater care when citing authority to this court. 20 unmistakable test[ ] where other language in the agreement creates an uncertainty in that regard.’ [Citation.]” (Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1197.) As we have already mentioned, the service agreement’s severability provision provides that “[i]f any of the provisions, or portions thereof, of this [a]greement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected.” (Italics added.) “As a general matter, where one contractual provision indicates that the enforceability of an arbitration provision is to be decided by the arbitrator, but another provision indicates that the court might also find provisions in the contract unenforceable, there is no clear and unmistakable delegation of authority to the arbitrator.” (Ajamian, supra, 203 Cal.App.4th at 792; accord Mondragon, supra, 101 Cal.App.5th at 609 [“the agreement’s incorporation of the AAA rules and reference to a court refusing to enforce certain provisions create an ambiguity regarding whether the parties intended to delegate arbitrability decisions to the arbitrator”]; Baker v. Osborne Development Corp. (2008) 159 Cal.App.4th 884, 893-894 [“although one provision of the arbitration agreement stated that issues of enforceability or voidability were to be decided by the arbitrator, another provision indicated that the court might find a provision unenforceable,” so “the arbitration agreement did not ‘clearly and unmistakably’ reserve to the arbitrator the issue of whether the arbitration agreement was enforceable”].) Thus, notwithstanding the incorporation by reference of JAMS rule 11(b), the service agreement’s provision that a court might decide the enforceability of “any of [its] 21 provisions” demonstrates the parties did not clearly and unmistakably delegate such questions to the arbitrator.8 In contrast to the service agreement, the severability provisions in the purchase agreement and license agreement do not expressly contemplate courts ruling on enforceability.9 8 The Cedars defendants’ arguments minimizing the severability provision lack merit. First, their reliance on Sandler v. Modernizing Medicine, Inc. (9th Cir. 2026) 170 F.4th 1209 for the proposition that “a generic severability clause” does not “negate[ ]” “[t]he clear and unmistakable nature of [a] delegation” is misplaced because the Ninth Circuit applied federal law in that case and observed “state rules announced by state courts holding that a severability clause negates an otherwise clear delegation would be preempted if applied to contracts subject to the [Federal Arbitration Act].” (Id. at 1212-1213, fn. omitted.) The Federal Arbitration Act does not govern in this case. Second, defendants’ contention that a severability provision somehow does not create an ambiguity when it refers only to a “court of competent jurisdiction”—as opposed to a court or an arbitrator—is unavailing. If anything, the severability provision’s failure to mention an arbitrator makes the purported delegation-by- incorporation even less clear. Third, the fact that the service agreement uses the phrase “court of competent jurisdiction” both in the severability provision and in a paragraph providing for enforcement of an arbitration award does not establish that “the court’s unique role . . . comes into play only after arbitration has been completed as required.” 9 The purchase agreement’s severability provision states: “If any one or more of the provisions of this [a]greement, or the applicability of any such provision to a specific situation, is deemed invalid or unenforceable, then such provision shall be modified to the minimum extent necessary to make its application valid and enforceable, and the validity and enforceability of all of the other provisions of this [a]greement, 22 However, the three agreements were drafted at the same time as part of the same transaction. The ambiguity with respect to who decides questions of arbitrability in the service agreement precludes finding a clear and unmistakable delegation in the related agreements. (See Civ. Code, § 1642 [“Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together”]; Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172, 1202-1203 [holding an integration clause does not preclude courts from construing separate agreements entered into as part of a “larger transaction” from being construed together under Civil Code section 1642].) C. Nonsignatory Defendants May Enforce the Arbitration Provisions Against Plaintiffs As a general matter, “only a party to an arbitration agreement is bound by or may enforce the agreement. [Citations.]” (Thomas v. Westlake (2012) 204 Cal.App.4th 605, 613, fn. omitted.) There are “‘limited exceptions’” to this general rule, however. (Gonzalez v. Nowhere Beverly Hills LLC (2024) 107 Cal.App.5th 111, 118.) Here, two of the plaintiffs (Drs. Kharrazi and Kvitne) and several of the defendants (everyone and all other applications of such provisions, shall not be affected.” The license agreement’s severability provision states: “Should any provision of this [a]greement be held unenforceable or in conflict with the law of any jurisdiction, then such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and the validity of the remaining provisions shall not be affected by such a holding. . . .” 23 other than Cedars) are not parties to the relevant agreements. As we shall discuss, all parties are nonetheless bound by and may enforce the agreements under the doctrine of equitable estoppel. 1. Nonsignatory plaintiffs may be compelled to arbitrate their claims Plaintiffs suggest it is “strange” for the Cedars defendants to argue Drs. Kharrazi and Kvitne are bound by the arbitration agreements because such arguments amount to a request that we “affirm the trial court’s implicit ruling that Dr. Kharrazi and Dr. Kvitne could be compelled to arbitrate the contract claims.” Accordingly, plaintiffs “do