NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

INTRODUCTION

Jennifer Lopez appeals from the denial of a motion to compel arbitration under Code of Civil Procedure section 1281.2, and the denial of a motion to stay the instant action pending arbitration.1 She contends she is entitled to enforce an arbitration clause in a settlement agreement against her ex-husband, Ojani Noa, and his purported agent and partner, Ed Meyer. We agree and, accordingly, reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint and Application for Injunctive Relief

On November 6, 2009, Lopez filed a complaint against respondents Noa and Meyer arising out of their attempts (1) to produce and sell a film entitled, "How I Married Jennifer Lopez: The JLo and Ojani Noa Story"; and (2) to sell or license "`11+ hours of previously unseen home video footage of Jennifer Lopez and Ojani Noa.'" Noa, a "`Cuban immigrant, chef, and model,'" was Lopez's first husband. Meyer was alleged to be Noa's agent, partner, and co-conspirator. Three days later, Lopez filed a statement reserving plaintiff's right to arbitration and an application for stay of proceedings pending arbitration of the dispute with Noa.

On November 10, 2009, Lopez filed an ex parte application for a temporary restraining order and order to show cause re preliminary injunction against Noa and Meyer. In support of the application, she submitted numerous documents, including (1) a 2005 settlement agreement between Noa and Mojo Restaurant, LLC, related to an employment dispute (the Settlement Agreement); and (2) a marital settlement agreement between Noa and Lopez entered into by the parties after their divorce. Because Lopez wanted to maintain the confidential nature of these agreements, she also concurrently filed an ex parte application for a protective order designating certain documents as confidential and requiring the parties to file confidential documents under seal. Both applications were granted by Judge James C. Chalfant in Department 85, who signed and entered the corresponding orders. After a hearing on December 1, 2009, Judge Chalfant issued a preliminary injunction prohibiting Noa, Meyer, and "their agents, attorneys, and any persons or entities acting in concert with them and/or on their behalf, and any persons aiding or abetting them regarding these matters," from disclosing in any form the proposed film or the home videos.

B. Motion to Compel Arbitration

On December 18, 2009, Lopez filed a motion to compel arbitration and an ex parte motion for an order staying the action pending arbitration. It was assigned to Department 78 of the Los Angeles Superior Court. In the motion to compel arbitration, Lopez asserted (1) that "Noa entered into a settlement agreement in October 2005 (the `Settlement Agreement') . . . of which [Lopez] was an express, intended Third Party Beneficiary of several provisions including the non-disclosure provision, the non-disparagement provision and the arbitration provision"; (2) that the current dispute with Noa was covered by "a mandatory, arbitration provision" in the Settlement Agreement; (3) that Meyer should also be compelled to arbitrate because he was "the agent, manager, partner and licensee of Defendant Noa" who "has engaged in conduct on behalf of Noa in breach of the non-disclosure and non-disparagement provisions of the Settlement Agreement"; and (4) that Noa and Meyer were collaterally estopped from relitigating the validity and scope of the arbitration provision because a prior "Judgment and Arbitration Award against Noa, which was confirmed by the Court on September 5, 2007, already conclusively decided that the Settlement Agreement is valid, that its arbitration provision is enforceable and applicable to Noa and anyone acting in concert with him, and that claims based on the disclosure and/or exploitation of private or intimate details about [Lopez] or about Noa's relationship with [Lopez] are arbitrable pursuant to the Settlement Agreement's arbitration provision."

In support of the motion to compel arbitration, Lopez submitted the declaration of her counsel, John H. Lavely, Jr., attaching a redacted copy of the Settlement Agreement. According to the declaration, "[p]ursuant to the confidentiality provision in the Settlement Agreement, and the Court's [protective] order of November 10, 2009, portions of the Settlement Agreement have been redacted, and the unredacted original of the Settlement Agreement has been filed under seal pursuant to the Court Order." Lavely identified the three provisions relevant to the current motion as the nondisclosure provision, the nondisparagement provision, and the mandatory arbitration provision.

The redacted arbitration provision stated that "[a]ny future dispute between [Noa] and Mojo or others released herein, relating in any way to . . . any aspect of this Agreement, its formation, validity, interpretation, effect, performance or breach (`Arbitrable Dispute'), will be submitted to confidential arbitration." Lopez asserted that she was included among the "others released herein." The nondisparagement provision in the Settlement Agreement, which was not redacted, provided that Noa would not, "in any way or mode, criticize, denigrate, cast in a negative light, or otherwise disparage or cause disparagement to Mojo, Lopez or any of the Releasees." Finally, the redacted nondisclosure provision provided that "in addition to his obligations set forth in [the nondisparagement provision]," Noa would not "disclose for monetary gain any private or intimate details about either Jennifer Lopez or his relationship with Ms. Lopez." The redacted agreement did not include the provision explicitly naming Lopez as a Releasee.

Also attached to Lavely's declaration were the 2007 Arbitration Award and the Judgment on that award entered by the Los Angeles Superior Court on September 5, 2007. In the arbitration award, the arbitrator found Noa had violated the nondisclosure and nondisparagement provisions of the Settlement Agreement by trying to sell a proposal for a book entitled, "J-Lo and Me." In the judgment on the arbitration award, the court confirmed the award of damages, and permanently enjoined Noa and "his agents, attorneys, and all persons or entities acting in concert with him and/or on his behalf, and any persons aiding or abetting him regarding these matters" from "[c]riticizing, denigrating, casting in a negative light or otherwise disparaging or causing disparagement to Lopez" and from "[d]isclosing for monetary gain any private or intimate details about Lopez or Noa's relationship with Lopez."

Also attached to the Lavely declaration were numerous documents supporting the allegation that Meyer was an agent for, or acted in concert with, Noa to violate the nondisclosure and nondisparagement provisions in the Settlement Agreement. These documents included an agreement between Noa, Meyer, and Claudia Vasquez in which Noa "exclusively license[d] any and all rights that he may own or is legally entitled to, regarding the story of himself and singer/actress Jennifer Lopez" to Meyer and Vasquez "for the purpose of the production of a book and movie titled `Jennifer Lopez (Jlo) and Me: The Ojani Noa Story.'" As part of the agreement, Meyer and Vasquez agreed to compensate Noa with one dollar upon the signing of the contract, and with 50 percent of the net profits from the book and movie. Other documents included (1) cease and desist letters to Meyer warning him about his possible involvement in violations of the nondisclosure and nondisparagement provisions; and (2) e-mails from Meyer in which he stated that he had "`exclusive' rights" to the home videos and was "marketing/licensing" them, that his "sales team has indicated that all existing and potential customers" were being advised about the target numbers for "rights sales" to the proposed film and home videos, and that he had "multiple lucrative offers for whole and fractional rights" to both of these projects.

Noa filed no opposition to the motions. Meyers filed several oppositions, all of which Lopez alleges were untimely. The record on appeal, however, shows one timely-filed opposition. In that opposition, Meyer contended, without evidentiary support, that the arbitration provision was invalid because it was the product of "conspiracies to conceal and hide evidence of crime[s]."

On February 29, 2010, Judge William F. Fahey held a hearing on the motions. Noa and Meyer were present without counsel. The court declined to grant Noa's request for an extension of time to retain counsel. Neither Noa nor Meyer offered oral argument on the merits of the motions.

At the hearing, the trial court stated that while Lopez might be an intended third party beneficiary, she was not entitled to enforce the arbitration provision because the provision did not apply to her disputes with Noa. When Lopez's counsel argued that Lopez was entitled to enforce the arbitration provision as a named Releasee, the court stated that Lopez was not a signatory to the agreement and was not named as a Releasee in the redacted agreement. The court rejected counsel's declaration that Lopez was a Releasee, and stated that it would not examine the court files to find the unredacted Settlement Agreement. Lopez's counsel explained that he did not file an unredacted copy because of Judge Chalfant's protective order. He also argued that Lopez's claim to be a Releasee had not been disputed or denied. Finally, after hearing the ruling of the court, Lopez's counsel asked for a continuance to file the unredacted Settlement Agreement that would show Lopez was a named Releasee. The court denied the request.

After the hearing, the trial court issued a written decision denying the motions on two grounds. First, "[t]he heavily redacted Settlement Agreement provided by [Lopez] fail[ed] to show that defendant Noa agreed to arbitrate any future disputes with [Lopez]." Second, "there [was] no showing that Meyer benefitted from the settlement agreement or that Meyer ha[d] a `pre-existing relationship' with Noa at the time the settlement agreement was entered into in October 2005 such that Noa had the implied authority to bind Meyer to the arbitration provision in the settlement agreement."

C. Appeal and Augmentation of the Record

On February 4, 2010, Lopez filed her notice of appeal of the order denying her motion to compel arbitration and motion to stay. While preparing the appellate record, counsel for Lopez discovered that 17 sealed documents, including the unredacted Settlement Agreement, were never sent from Judge Chalfant's courtroom, in Department 85, to Judge Fahey's courtroom, in Department 78, as was customary. On September 10, 2010, this court granted Lopez's motion to augment the record with the sealed documents.

DISCUSSION

On appeal, Lopez contends the trial court erred as a matter of law in denying her motion to compel arbitration and to stay the action pending arbitration because the arbitration provision in the Settlement Agreement is valid, is applicable to the dispute, and is enforceable by Lopez against Noa and Meyer. In general, we review a decision to deny a motion to compel arbitration for an abuse of discretion. Where the language of an arbitration clause is not in dispute however, we review the court's determination on arbitrability de novo. (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 707-708 (Molecular Analytical Systems).) Likewise, "`[w]hether and to what extent [nonsignatories] can also enforce the arbitration clause is a question of law, which we review de novo.'" (Id. at p. 708, citing Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1283.) Accordingly, because the trial court's denial of the motions was based upon undisputed facts and evidence, we will independently review the trial court's decision to deny the motions.

Section 1281.2 provides that, subject to certain exceptions, "[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists." "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." (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Moreover, "[a] party can be compelled to arbitrate only those issues it has agreed to arbitrate." (Larkin v. Williams, Woolley, Cogswell, Nakazawa & Russell (1999) 76 Cal.App.4th 227, 230.) Thus, the court must examine the contractual language of the arbitration clause to determine whether the current dispute is subject to arbitration. (Molecular Analytical Systems, supra, 186 Cal.App.4th at p. 705.) "The party opposing arbitration has the burden of showing that the agreement, as properly interpreted, does not apply to the dispute. [Citations.]" (Ibid.)

Here, the arbitration provision provided that "[a]ny future dispute between [Noa] and Mojo or others released herein, relating in any way to . . . any aspect of this Agreement, its formation, validity, interpretation, effect, performance or breach (`Arbitrable Dispute'), will be submitted to confidential arbitration." The nondisclosure and nondisparagement provisions are part of the Settlement Agreement, and the current dispute between Noa and Lopez falls within the scope of those provisions as the proposed film and home videos would reveal "private or intimate details about Lopez or Noa's relationship with Lopez." Furthermore, although the Settlement Agreement arose from an employment dispute, the language of the arbitration provision is sufficiently broad to apply to nonemployment disputes. Thus, the current dispute is within the scope of the arbitration provision.2 We next turn to whether Lopez can enforce the arbitration provision against Noa.

A. Enforceability of Arbitration Provision Against Noa

The trial court concluded that Lopez could not enforce the arbitration provision against Noa because she was a not a signatory to the Settlement Agreement, and the redacted documents before the court did not show Lopez to be a named Releasee. We conclude that regardless of whether Lopez was a signatory to the Settlement Agreement, she was entitled to enforce the arbitration provision as a third party beneficiary of that agreement. Additionally, we conclude that the unredacted version of the Settlement Agreement previously lodged with the court leaves no doubt that Lopez was a named Releasee expressly entitled to enforce the agreement.

"It is well established that a nonsignatory beneficiary of an arbitration clause is entitled to require arbitration." (Harris v. Superior Court (1986) 188 Cal.App.3d 475, 478.) "[I]n deciding a petition to compel arbitration, a trial court may decide, based on the evidence before it, that the petitioner is a third party beneficiary to an existing arbitration agreement and therefore may enforce that agreement." (Bouton v. USAA Casualty Ins. Co. (2008) 167 Cal.App.4th 412, 425.) Here, Lopez is an express beneficiary of the nondisclosure and nondisparagement provisions in the Settlement Agreement, and her instant dispute with Noa involved those provisions. Thus, she may enforce the arbitration provision against Noa.

Additionally, Lopez may enforce the arbitration provision against Noa as she is a named Releasee in the Settlement Agreement, and any dispute between Noa and "others released herein" is expressly subject to confidential arbitration. Lopez has consistently asserted that she is a named Releasee in the Settlement Agreement, including in the motion to compel arbitration. This assertion has never been contested by Noa or Meyer. Furthermore, a review of the unredacted Settlement Agreement shows that Lopez is a named Releasee.

On appeal, Noa contends there is insufficient evidence to support Lopez's assertion that she is a named Releasee because she failed to include an unredacted copy of the Settlement Agreement with her motion to compel arbitration as required by California Rules of Court, rule 2.551(b)(5).3 We disagree.4

Rule 2.551(b) sets forth provisions involving motions or applications to seal a record. Rule 2.551(b)(5) provides that "[i]f necessary to prevent disclosure, any motion or application, any opposition, and any supporting documents must be filed in a public redacted version and lodged in a complete version conditionally under seal." There is no dispute that Lopez filed a redacted version and lodged an unredacted version of the Settlement Agreement with the Los Angeles Superior Court. All the pleadings in the case were filed and the sealed documents lodged under a single case number.

Exalting form over substance, Noa suggests that Lopez was required to lodge another copy of the sealed documents with the Los Angeles Superior Court when she filed her motion to compel. He relies on H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, in which the court stated that "[i]f a party files a new document referring to sealed matter, it must submit an unredacted version of the document under seal and a redacted one for the public record." (Id. at p. 889.) That statement was dicta. It appeared in a recitation of rule 2.551(b)(5) but finds no support in the language of the rule itself. Moreover, if slavishly adhered to, it would lead to absurd results, as under such an interpretation, parties could be compelled to lodge voluminous amounts of sealed materials with each pleading. We decline to read such a requirement into the rule.

Moreover, under the circumstances, we find Lopez's failure to resubmit an unredacted copy of the Settlement Agreement was not unreasonable. First, when seeking injunctive relief, Lopez lodged the unredacted Settlement Agreement with the court and served it on both Noa and Meyer. Second, Lopez explicitly asserted that she was a named Releasee and specifically referenced the unredacted Settlement Agreement in the motion to compel arbitration. Lopez could reasonably believe the previously lodged unredacted copy of the Settlement Agreement would be forwarded to Judge Fahey for his review, as her motions were filed under the same case number used for her applications before Judge Chalfant. Third, Lopez was never put on notice by Noa or Meyer that either would challenge her status as a named Releasee. Indeed, neither did. Finally, after learning that Judge Fahey did not have a copy of the unredacted agreement before him, Lopez offered to resubmit one, but that request was denied. On this record, Lopez met her burden of showing that she was a named Releasee under the Settlement Agreement, and could enforce the arbitration provision against Noa. We next turn to whether Lopez can enforce the arbitration provision against Meyer.

B. Enforceability of Arbitration Provision against Meyer

On appeal, Meyer contends Lopez cannot enforce the arbitration agreement against him because his business arrangement with Noa is not an employment contract, he does not have a relationship with Lopez or Mojo, he is not a signatory to the Settlement Agreement, he did not benefit from the agreement, and he did not have a preexisting relationship with Noa in 2005 when the agreement was signed. We disagree that these facts, which are undisputed, are dispositive of whether Lopez can enforce the arbitration provision against Meyer. Meyer's first two arguments (that he does not employ Noa and has no relationship with Lopez or Mojo) go to the scope of the arbitration provision. As we have already concluded that the arbitration provision covers nonemployment disputes including the instant dispute, we turn to the question whether Meyer, a nonsignatory to the agreement, can be compelled to arbitrate the instant dispute.

In general, only a party to an arbitration agreement is bound by it. (Westra v. Marcus & Millichap Real Estate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 765.) Nevertheless, "[t]here are exceptions to the general rule that a nonsignatory to an agreement cannot be compelled to arbitrate and cannot invoke an agreement to arbitrate, without being a party to the arbitration agreement." (Ibid., citing County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 245.) For example, "[a] nonsignatory to an agreement to arbitrate may be required to arbitrate, and may invoke arbitration against a party, if a preexisting confidential relationship, such as an agency relationship between the nonsignatory and one of the parties to the arbitration agreement, makes it equitable to impose the duty to arbitrate upon the nonsignatory." (Ibid.; see also Keller Construction Co. v. Kashani (1990) 220 Cal.App.3d 222, 228-229 [sole general partner is agent of limited partnership and thus subject to arbitration agreement between partnership and third party].)

Here, Lopez has alleged that Meyer has an agency relationship with Noa. She supported this allegation with evidence that Meyer had an agreement with Noa to pay him 50 percent of the net profits from a movie that would violate the nondisclosure provision of the Settlement Agreement because the movie would reveal private or intimate details of Lopez or of her relationship with Noa. The evidence also shows that Meyer was aware that his actions would likely violate the nondisclosure and nondisparagement provisions, but that he would not voluntarily cease and desist from those actions.

Meyer has not contradicted any of the evidence of his agency relationship with Noa. On appeal, he contends only that the arbitration provision cannot be enforced against him because he did not have a preexisting relationship with Noa in 2005 and was neither a signatory nor beneficiary of the Settlement Agreement. It is undisputed, however, that Noa signed and benefited from the agreement, and Lopez has submitted uncontroverted evidence that there is an agency relationship between Noa and Meyer. On this record, we conclude that Lopez has met her burden of showing by a preponderance of the evidence that Meyer is subject to the arbitration provision.

DISPOSITION

The order denying the motion to compel arbitration and the motion to stay the action pending arbitration is reversed. The matter is remanded to the trial court to enter an order granting both motions. Costs are awarded to appellant.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.