Filed 6/8/06 Johnston v. Morelli CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| JEFF JOHNSTON, Individually and as Trustee, etc., et al., Plaintiffs and Appellants, v. CHARLOTTE PIA MORELLI, as Trustee, etc., et al., Defendants and Respondents. |
F046348
(Super. Ct. No. 340574)
OPINION |
APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl W. Johnson, Judge.
Hanson-Briggs Law Group, Christopher D. N. Hanson, Charles H. Briggs, III, Carol A. Jasinski, for Plaintiffs and Appellants.
Michael C. Normoyle for Defendants and Respondents.
-ooOoo-
Petitioner Jeff Johnston, a real estate broker, and entities controlled by him (petitioners), appeal from the denial of their petition to compel arbitration under two alleged contracts between them and respondent property owners (respondents). The first alleged contract is a property listing agreement under which petitioners sought to compel arbitration of their claim to a deposit the owners received from a third party in connection with an unconsummated sale of their property. The second is a purported contract for the sale of the same property to petitioners. Petitioners sought arbitration of their claim that respondents breached that contract by refusing to complete the sale.
The primary argument advanced against arbitration under the listing agreement is that the petition named Johnston's corporation as a petitioner instead of using the fictitious business name under which the corporation entered into the listing agreement. A fictitious business name is not a legal entity and need not be treated as if it were a party to legal proceedings. We reverse the denial of the petition to compel arbitration under that agreement.
The parties agree that the controlling issue with respect to arbitration under the purchase contract is whether the parties ever entered into a contract. The record shows that petitioners rejected respondents' counteroffer on the property before attempting to accept it, so no contract was formed. We affirm the denial of the petition to compel arbitration under that alleged contract.
FACTUAL AND PROCEDURAL HISTORIES
Jeff Johnston is the president and sole shareholder of Pride Mortgage, Inc. (Pride Mortgage). Pride Mortgage has had two fictitious business names: Commercial Investment Properties (CIP) and Diversified Investment Properties (DIP). Johnston ceased using CIP in favor of DIP when he concluded that CIP was too common. Johnston is also trustee of an entity sometimes referred to in the papers as Johnston Family Trust of 2003 and Jeff Johnston Living Trust of 2003. Johnston and Pride Mortgage are licensed real estate brokers.
On June 28, 2002, Johnston executed an Exclusive Agency Listing Agreement (the listing agreement) to represent the sellers of a shopping center located at 2400 Coffee Road in Modesto, known as Coffee Plaza. Johnston signed the agreement on behalf of CIP. The sellers named in the agreement were Charlotte Pia Morelli, Josephine Pia, Bay Cities Properties, and Pia Family Trust. Pia (who is now deceased) and Morelli were trustees of Pia Family Trust A and B. Pia Family Trust is the sole shareholder of Bay Cities Properties, a corporation.
The listing agreement provided: â€
