                               NOT FOR PUBLICATION                            FILED
                        UNITED STATES COURT OF APPEALS                         AUG 4 2017
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT

AREVALO TORTILLERIA, INC.,                           No.   15-56830

                    Plaintiff-Appellant,             D.C. No.
                                                     2:15-cv-05497-PA-JC
     v.

APPLIED UNDERWRITERS CAPTIVE                         MEMORANDUM*
RISK ASSURANCE COMPANY, INC.,

                    Defendant-Appellee.

                       Appeal from the United States District Court
                          for the Central District of California
                        Percy Anderson, District Judge, Presiding

                            Argued and Submitted June 6, 2017
                                  Pasadena, California

Before: BEA and HURWITZ, Circuit Judges, and MOTZ,** Senior District Judge.

          Plaintiff Arevalo Tortilleria, Inc. (“Arevalo”) appeals the district court’s

decision granting Defendant Applied Underwriters Captive Risk Assurance

Company, Inc.’s (“AUCRA”) motions to dismiss and compel arbitration. We have



*
 This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
  The Honorable J. Frederick Motz, Senior United States District Judge for the
District of Maryland, sitting by designation.
jurisdiction over this appeal pursuant to 9 U.S.C. § 16(a)(3), and vacate the

judgment and remand to the district court for a trial on whether Arevalo executed

the arbitration agreements.1

      1.     Section 4 of the Federal Arbitration Act (“FAA”) states that “[i]f the

making of the arbitration agreement . . . be in issue, the court shall proceed

summarily to a trial thereof.” 9 U.S.C. § 4. AUCRA provided the district court

with copies of two contracts—a Reinsurance Participation Agreement (“RPA”) and

a Request to Bind—that were purportedly signed by Arevalo’s CEO and contained

arbitration clauses. But, Arevalo submitted a declaration by the alleged signatory’s

son and successor, stating that he is very familiar with his father’s signature and

did not recognize the signatures or believe they were written by his father. Arevalo

therefore raised a genuine issue of fact with respect to the execution of the

agreements, and is entitled to a trial under the FAA.2

      2.     The district court did not err in holding that AUCRA has the right to

enforce the RPA. Although AUCRA was a British Virgin Islands corporation

when it executed the RPA, the Iowa corporation into which it merged assumed its

predecessor’s rights and obligations. See IOWA CODE ANN. § 491.110. The fact


1
      The parties’ various motions to take judicial notice of documents in other
proceedings (Dkt. 10, 14, 15) are granted.
2
      We decline to address in the first instance what procedures are required for
such a trial.

                                          2
that in 2012, a subsidiary of AUCRA sent Arevalo a demand letter and a draft

state-court complaint naming Applied Risk Services as “assignee of certain

accounts receivables” from AUCRA, does not raise a genuine issue of fact as to

whether AUCRA assigned away its right to enforce the arbitration agreement in

the RPA.

      3.     The district court did not err in holding that the arbitration agreements

were not inconsistent. Although the RPA and the Request to Bind provide for

arbitration in different locations, the parties indisputably intended that disputes

related to the RPA be submitted to arbitration, and the arbitrators can reconcile any

dispute about venue.

      AFFIRMED IN PART; VACATED IN PART AND REMANDED.




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