NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

MOORE, J.

Defendants OC Real Estate Consultants, Inc. (OCRE),1 Elaine Armogida, Kenneth Shishido, and Tammy Newland appeal the trial court's order denying their petitions to compel plaintiff David Chamberlain and Century 21 Chamberlain & Associates (Century 21) to arbitrate their complaint for slander per se and related causes of action. We conclude the trial court properly found that the scope of the pertinent arbitration agreements did not extend to the instant dispute, and therefore affirm the court's order.

I

FACTS

Chamberlain was the broker for the Century 21 real estate agency as of August 2008, when the initial complaint in this action was filed. Cameron Merage was the broker for defendant First Team Real Estate of Orange County (First Team), and his associates included Steve Leitner, Jr., and Dave Pedneault. The complaint, filed on behalf of Century 21 and Chamberlain (collectively plaintiffs), alleged that in June 2008, Leitner made a number of slanderous allegations against Chamberlain, all based on the contention that Chamberlain had committed "loan fraud." The allegations variously included statements that Chamberlain had been arrested, was in jail, had been indicted, and was under federal investigation. The complaint further alleged that these statements were false, and had been heard by numerous individuals and the general public with the intent to damage Chamberlain's reputation and his business. Seeking damages and injunctive relief, the complaint set forth causes of action for slander per se, unfair competition/business practices, negligence, and intentional infliction of emotional distress. A first amended complaint alleging the same claims, with the exception of the unfair competition cause of action, was later filed in December 2008.

In February 2009, First Team, Merage, and Pedenault were dismissed from the complaint pursuant to a settlement agreement. Another defendant, Jean Frank, was added to the case through a Doe amendment as plaintiffs attempted to learn the source of the allegations. Through discovery and the process of opposing several anti-SLAPP motions, plaintiffs came to believe that Joseph Mathias, a former agent at both Century 21 and OCRE,2 was the source, and had been telling people he had confirmed Chamberlain's arrest with the police. He was also added as a defendant. At his deposition, he testified that Elaine Armogida, a manager at OCRE, had told him of Chamberlain's purported arrest. Armogida later testified that she did not recall where she had first heard the allegations, but that Mathias claimed to have verified Chamberlain's arrest.

In March 2010, plaintiffs named Armogida as a defendant, as well as OCRE, Tammy Newland, and Kenneth Shishido. Newland is an agent at OCRE and Shishido is broker of record. In the meantime, Leitner and Frank settled with plaintiffs, while Mathias remains a party to the instant case.

OCRE, Armogida, Newland and Shishido (collectively defendants) filed two petitions to compel arbitration, on May 14 and May 28. OCRE and Armogida also answered the complaint on May 14, and on May 24, they filed an amended answer which also asserted arbitration as an affirmative defense. While the May 14 petition, filed on behalf of OCRE and Armogida, relied on bylaws and arbitration rules promulgated by the California Association of Realtors (CAR) and the Rancho Southeast Association of Realtors (Rancho Board), the May 24 petition, filed on behalf of Shishido and Newland, relied on bylaws and arbitration rules set forth by CAR and the Pacific West Association (Pacific Board; the Rancho Board and Pacific Board are collectively referred to hereafter as "the associations"). Defendants collectively argued that the rules of the CAR and local real estate boards required arbitration.

Plaintiffs responded that arbitration was not required because the case did not arise out of any real estate transaction or business in which defendants were acting in their capacity as real estate agents. Plaintiffs also submitted evidence establishing that CAR and the associations conduct arbitration using real estate brokers or agents, not attorneys or judges who were equipped to address the issues and defenses present in their case. They also argued that plaintiffs had failed to establish that OCRE was a member of CAR or the associations and therefore entitled to seek arbitration under the relevant agreements, and that because Mathias was not subject to arbitration, the risk of inconsistent results existed.

In addition to their reply, plaintiffs also filed evidentiary objections to Chamberlain's declaration and the declaration of plaintiffs' counsel. After hearing argument and taking the matter under submission, the court denied both petitions to compel arbitration. The court determined: "While the petitioners have established the existence of the arbitration agreements, the court finds they do not apply to the dispute herein. This lawsuit is not about real estate commissions or disputes arising over a listing or sale of real estate, which the agreements are clearly intended to resolve. There is no proof by a preponderance of the evidence that this lawsuit arises out of the real estate business or that it relates to a real estate transaction. Likewise there is no proof by a preponderance of the evidence that the dispute arose between members while acting in the capacity of their real estate licenses. Finally, there is no evidence that the CAR or local associations have tribunal panels trained or competent to adjudicate the causes of action [f]or relief, including injunctive relief, in the complaint. Accordingly, the petition to compel arbitration is denied."

Defendants filed the instant appeal of the court's ruling on the petitions. The trial court eventually granted a stay of further action pending appeal, and the action was severed as to Mathias. A demurrer that defendants had filed was taken off calendar.

II

DISCUSSION

Relevant Law and Standard of Review

Code of Civil Procedure3 "[s]ection 1281.2 requires a court to order arbitration `if it determines that an agreement to arbitrate . . . exists . . . .' (§ 1281.2.) [W]here, as here, the evidence is undisputed, appellate review of the determination of the enforceability of an arbitration agreement is de novo. [Citation.] We use general principles of California contract law to determine the enforceability of the arbitration agreement. [Citation.]" (Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1153 (Mission Viejo).)

While California favors arbitration as a means of resolving disputes in an expeditious and cost-effective manner (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9), parties can only be required to arbitrate when they have agreed to do so. (Westra v. Marcus & Millichap Real Estate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 763.) "The strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration. [Citation.]" (Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990; see also § 1281 [right to arbitration depends on contract].)

"[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists . . . . 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." (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 409-410); see also Volt Info. Sciences, Inc. v. Bd. of Trustees (1989) 489 U.S. 468, 475-476 [state contract formation law applies]; Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761-762 [enforceability determined in manner provided by law for the hearing of motions].) "`Prima facie evidence is that degree of evidence which suffices for proof of a particular fact until contradicted and overcome, as it may be, by other evidence, direct or indirect.'" (People v. Van Gorden (1964) 226 Cal.App.2d 634, 636-637.)

Defendants' Evidence of an Arbitration Agreement

We first set forth the relevant provisions which defendants argue require arbitration in this case. In the May 28 petition relevant to Shishido and Newland, defendants offered evidence that Chamberlain was a member of Pacific West in the form of a search result from Pacific West's Web site. Under Article VII, section 2 of the Pacific West bylaws: "It shall be the duty and responsibility of every REALTOR® member . . . to abide by the Constitution and Bylaws and the Rules and Regulations . . . and the Code of Ethics, including the duty to arbitrate controversies arising out of real estate transactions as specified by Article 17 of the N.A.R. [National Association of Realtors] Code of Ethics and as further defined and in accordance with the procedures set forth in the California Code of Ethics and Arbitration Manual . . . ."

Article 42 of the California Code of Ethics and Arbitration Manual (the California Manual), which applies to CAR members, states: "(a) By becoming and remaining a member of an Association and by signing or having signed the agreement to abide by the Association bylaws, every member binds him or herself and the corporation or firm for which he or she acts, and agrees to submit to binding arbitration, at the local Association where all parties are members or C.A.R. as set forth in Section 45, all disputes as defined by Article 174 of the N.A.R. Code of Ethics and as set forth in the provisions of this Section. . . . Disputes subject to arbitration include: 1) disputes with other members arising out of the real estate business and their relationship as REALTORS® and 2) contractual disputes with a member's client arising out of an agency relationship between the member and client provided the client agrees to submit the dispute to binding arbitration using the Association's facilities and be bound by the arbitration award. The obligation under this Section shall be deemed an arbitration agreement within the meaning of Part 3, Title 9 of the California Code of Civil Procedure." (Italics added.)

Section 45 of the California Manual states: "(a) By becoming or remaining a member, every member binds him and herself and the firm for which he or she acts and agrees to submit to binding arbitration, by the arbitration facilities of the CALIFORNIA ASSOCIATION OF REALTORS® ("C.A.R.") . . . any dispute with a member of any different local association affiliated with C.A.R., provided: 1) the dispute is a dispute as defined in Section 42; 2) the bylaws of the other local association incorporate this Manual or contain a provision similar to this; and 3) C.A.R. maintains arbitration facilities capable of handling the dispute or a multi-Association or shared panel has been comprised according to Section 47 of Part Two of this Manual." Defendants also relied on the Implementation Guidelines for arbitration promulgated by CAR. The Guidelines repeat that members are not required to arbitrate all disputes with other members, only those that "arise out of the real estate business."

In the May 14 petition, pertinent to Armogida and OCRE, plaintiffs set forth evidence that Armogida was a member of Rancho, and as such, was a member of a different realtor board. Thus, they argued that under CAR's Interboard Arbitration Rules (Interboard Rules), Chamberlain was required to arbitrate. According to section 2 of the Interboard Rules: "By becoming or remaining a member, every member binds himself or herself, and the firm for which he or she acts, and agrees to submit to the interboard arbitration facilities of C.A.R., a dispute with a member of any other local Board affiliated with C.A.R., provided 1) Bylaws of the local Board incorporate the California Code of Ethics and Arbitration Manual or contain a provision similar to Section 44 of Part Two of that Manual, and 2) C.A.R. maintains arbitration facilities capable of handling the dispute." Section 1 of the Interboard Rules defines "dispute" as "a controversy arising out of the real estate business."

With respect to all the documents, defendants attached pertinent declarations attesting to the truth of the relevant facts and the authenticity of the various documents attached. Chamberlain does not dispute the basic facts that he is a member of CAR and the Pacific Board. We therefore agree with the trial court that prima facie evidence existed that Chamberlain had agreed to arbitrate some disputes as a member of CAR and the Pacific Board.

Delegation of Arbitrability Determination

Before returning to the issue of whether Chamberlain was required to arbitrate the dispute at issue here, we pause to address the question of whether the court properly determined whether this dispute is arbitrable, or should have left that issue for an arbitrator to determine. Defendants claim that the California Manual gives CAR the "sole discretion" to determine whether the dispute is arbitrable. Section 44 (a) states, in pertinent part: "(a) If the hearing Panel determines that because of the magnitude of the amount involved or the legal complexity of the controversy the dispute should not be arbitrated, it shall so report its recommendation to the Board of Directors. If the Board of Directors concurs, the arbitration shall terminate and the parties shall be relieved of their obligation to arbitrate pursuant to the provisions of this Manual." The Implementation Guidelines state: "If a member objects that the matter does not `arise out of the real estate business,' the matter is still referred for a hearing and the arbitrators will make that determination. However, in some cases, a dispute may be submitted for arbitration that clearly did not arise out of the real estate business. In these situations, the association may consult with legal counsel and refuse to accept the arbitration complaint."

The United States Supreme Court held in Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79 that "the `question of arbitrability,' is `an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.' [Citation.]" (Id. at p. 83; see also Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1565 [delegation must be "clear and unmistakable"]; Laguna v. Coverall N. Am., Inc. (S.D. Cal July 26, 2011, No. 09cv2131-JM) 2011 U.S. Dist. Lexis 81105 [court decides threshold issue when delegation provision is ambiguous].)

With respect to the language in the California Manual, we do not find that it "clearly and unmistakably" expresses an intent to give sole jurisdiction over arbitrability to CAR. It simply states when CAR may choose to decline an arbitration, not to seize jurisdiction over the issue of arbitrability at the first instance. Compared to language in other so-called delegation clauses, it falls far short of the clarity required. (See, e.g., Hartley v. Superior Court 196 Cal.App.4th 1249, 1255-1256 [all disputes, "`including the determination of the scope and applicability of this agreement to arbitrate, shall be . . . submitted to final and binding arbitration . . . .'"].)

With respect to the language in the Implementation Guidelines, the introduction to that document states: "The following guidelines are offered to help clarify and aid in the implementation of the California Code of Ethics and Arbitration Manual. They are not intended to be a substitute for the Manual and should not be taken as such. They are to assist in specific circumstances and to provide rationale for the Manual provisions. To the extent these guidelines conflict with the provisions of the Manual, the Manual shall control." Given that the California Manual does not express a clear intent to decide the issue of arbitrability, we conclude that the Implementation Guidelines cannot do so either, under its own terms.

Further, even if we inclined to find that the language of the Implementation Guidelines could operate independently, defendants do not provide evidence that this document is properly incorporated by reference into any document to which Chamberlain actually agreed, such as the California Manual or Pacific Board bylaws, and is therefore part of the arbitration agreement. "`For the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal, the reference must be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.'" (Williams Constr. Co. v. Standard-Pacific Corp. (1967) 254 Cal.App.2d 442, 454.) Based on the evidence defendants have offered, the Implementation Guidelines were not properly incorporated by reference into any arbitration agreement.

Scope of the Arbitration Agreements

The trial court correctly concluded that arbitration agreements existed that applied to some disputes, and we agree with the trial court that the agreements do not apply to the dispute at issue here. We base our decision entirely on the language of the relevant documents, the complaint, and pertinent California contract law. (Mission Viejo, supra, 197 Cal.App.4th at p. 1153.)5 "In determining the scope of an arbitration clause, `[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 [citation].' [Citation.]" (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.) "[T]he terms of the specific arbitration clause under consideration must reasonably cover the dispute as to which arbitration is requested." (Bono v. David (2007) 147 Cal.App.4th 1055, 1063 (Bono).)

The relevant documents requiring arbitration all include limiting language, describing the scope of disputes subject to arbitration. Article 42 of the California Manual states: "Disputes subject to arbitration include: 1) disputes with other members arising out of the real estate business and their relationship as REALTORS® and 2) contractual disputes with a member's client arising out of an agency relationship between the member and client . . . ." The second provision is not at issue here. Thus, the question becomes whether the instant dispute is one "arising out of the real estate business and their relationship as REALTORS® . . . ."

We conclude that it does not. This dispute "arises" from the real estate business only in the broadest sense — all the parties are realtors and in the same business. But the instant complaint is entirely based on the alleged slanderous allegations, not any real estate transaction or dispute. To reach the conclusion that defendants desire, we would have to find that any dispute between two realtors, no matter how far afield from their work, is subject to arbitration. The relevant language does not support such an interpretation. The cases defendants cite to the contrary are inapposite, relying on authority that broadly interprets "arising from" language, including in the insurance context, where ambiguous coverage provisions are interpreted against the drafter. (See, e.g., Acceptance Ins. Co. v. Syufy Enterprises (1999) 69 Cal.App.4th 321, 326.)

Defendants also rely on Vianna v. Doctors' Management Co. (1994) 27 Cal.App.4th 1186, an employment case in which the relevant contract stated: "`[I]n the event of any dispute of any kind whatsoever, regarding the meaning, interpretation or enforcement of the provisions of this Agreement, both parties agree that the matter shall be resolved through the use of binding arbitration as provided in California Code of Civil Procedure 1280 et seq.'" (Id. at p. 1188.) After the plaintiff's employment ended, he filed a lawsuit alleging breach of the implied covenant of good faith and fair dealing, negligent infliction of emotional distress, defamation, intentional interference with economic advantage and contractual relations and conspiracy. (Id. at p. 1189.) The Court of Appeal, reversing the trial court, found that all of the plaintiff's claims "are rooted in the employment relationship created by their contract" and therefore the tort claims were subject to arbitration. (Id. at p. 1190.)

The same relationship and expectations do not exist here. While the entire business relationship or realtors may be rooted in the rules promulgated by CAR and groups such as the Associations, not every action by a realtor or interaction between realtors is subject to arbitration. If one realtor threw a punch at another at a restaurant, it would be untenable to suggest that any realtor, "`in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made'" (Victoria v. Superior Court, supra, 40 Cal.3d at p. 744) would expect to be required to arbitrate their assault case. Nor would the contractual language and circumstances suggest to any reasonable realtor that they would be expected to arbitrate their case if they were in a car accident with another realtor during their work day. Such disputes do not "aris[e] out of the real estate business and their relationship as REALTORS®" within the plain meaning of the California Handbook.

In Bono, the court considered whether an arbitration clause in a memorandum of understanding among tenants in common of a property the group planned to develop encompassed a defamation claim. (Bono, supra, 147 Cal.App.4th at p. 1057.) The clause at issue read: "`Any controversy among the parties involving the construction or application of any provision of this Agreement shall be submitted first to non-binding mediation of a disinterested third-party chosen by a two thirds majority of the parties hereto . . . . [I]f the written determination of said mediator is unacceptable to any one of the parties involved, said grievance shall be subject to binding arbitration in San Francisco, California.'" (Id. at pp. 1058-1059.) After a number of disputes arose, Bono filed a defamation claim against another tenant, David, alleging that David had described her as unstable and untrustworthy, among other things. (Id. at p. 1060.) The Court of Appeal ultimately agreed with the trial court that Bono was not required to arbitrate the defamation claim. (Id. at p. 1067.)

Focusing on the language used in the arbitration clause, the court concluded that it covered only "a controversy involving `the construction and application of any provision of this Agreement.'" (Bono, supra, 147 Cal.App.4th at p. 1067.) Such language was not intended to encompass a defamation claim that had no relation to the construction or application of the memorandum of understanding. (Ibid.) Here, we have the provision in the California Manual, which limits mandatory arbitration to "disputes with other members arising out of the real estate business and their relationship as REALTORS®." Like the clause in Bono, it is not all-encompassing according to its language. Just as the clause in Bono limited mandatory arbitration to claims arising under the memorandum of understanding, here, it is limited to claims both arising from the real estate business and the relationship between the parties as realtors.

Moreover, the Implementation Guidelines6 also state that not all disputes between realtors require arbitration, only those that "`arise out of the real estate business.' As a general guideline, the types of disputes that arise out of the real estate business are those that arise between members when acting in the capacity of their real estate licenses and that involve monetary disputes, such as a procuring cause dispute over a commission." This language is instructive and strongly supports the conclusion that the intent of the parties was to limit arbitration to such disputes. Cases that arise because of gossip and making negative statements about a competitor that are not tied to any specific transaction are not subject to arbitration.

Further evidence of the expectations of the parties is provided by the type of arbitrators contemplated by the relevant agreements. The California Handbook does not provide for arbitration before lawyers or retired judges, but by a "Hearing Panel" composed of other realtors. While panelists may be experts about practices within the real estate industry, they are not required to have any legal training or expertise. When combined with the language from the Implementation Guidelines that specifically lists the types of disputes for which mandatory arbitration is required — "monetary disputes, such as a procuring cause dispute over a commission" — it strengthens the argument that arbitration before a panel of fellow realtors was intended only to encompass such issues that would be within a realtors' knowledge or experience.7 A defamation case involving complex First Amendment issues would be not be within the scope of such knowledge.

Additionally, the California Handbook language is not, as defendants seem to suggest, disjunctive — the dispute must arise out of both "the real estate business" and the "relationship as REALTORS®" between the parties. Under the allegations of the complaint, there is no pertinent "relationship" that is relevant to this dispute other than the parties simply knowing each other. Under section 45 of the California Handbook, disputes are only subject to arbitration if they constitute a dispute as defined by section 42. Therefore, we conclude that the California Manual does not require arbitration.

The Pacific Board bylaws are similarly of no help to defendants. To the extent they do not entirely rely upon the California Manual, the bylaws state that members have "the duty to arbitrate controversies arising out of real estate transactions . . . ." As we discussed above, no real estate transaction is relevant to Chamberlain's claim against defendants. Similarly, the Interboard Arbitration Rules define a "dispute" as "a controversy arising out of the real estate business." The instant controversy, however, does not arise from the real estate business and the parties relationship as realtors, but from defendants' allegedly slanderous allegations. We therefore conclude the trial court correctly found that the instant dispute was not within the scope of any arbitration agreement.

III

DISPOSITION

The order is affirmed. Plaintiffs are entitled to their costs on appeal.

O'LEARY, ACTING P. J. and FYBEL, J., concurs.