Judge: Ashfaq G. Chowdhury, Case: 23GDCV00902, Date: 2024-02-09 Tentative Ruling
Case Number: 23GDCV00902 Hearing Date: February 9, 2024 Dept: E
Hearing Date: 02/09/2024 – 8:30am
Case No: 23GDCV00902
Trial Date: UNSET
Case Name: PABLO CESAR MONTALVO JACINTO, an individual; v. MERCEDEZ-BENZ USA,
LLC, a Delaware Limited Liability Company, and DOES 1-10
TENTATIVE
RULING ON MOTION TO COMPEL ARBITRATION
Moving Party: Defendant, Mercedes-Benz USA, LLC
(Defendant or MBUSA)
Responding Party: Plaintiff, Pablo Cesar Montalvo
Jacinto
Moving Papers: Motion/Memo; Proposed Order; Ameripour
Declaration; Request for Judicial Notice;
Opposing Papers: Opposition; Evidentiary Objections;
Request for Judicial Notice; Serrano Declaration
Reply Papers: An untimely Reply was submitted but the
Court will still consider it.
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Correct Address (CCP §1013, §1013a, §1013b): Ok
CCP §1290.4 is not applicable.
RELIEF REQUESTED
Defendant,
Mercedes-Benz USA, LLC (“MBUSA”), will move, and hereby moves the Court for an
order (i) compelling Plaintiff Pablo Cesar Montalvo Jacinto to arbitrate all of
his claims in accordance with the arbitration agreement; and (ii) staying this
action pending the outcome of arbitration.
This motion is made
pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, California
Code of Civil Procedure § 1281 et seq. and supported by the accompanying
Memorandum of Points and Authorities, Request for Judicial Notice and exhibits
thereto, Declaration of Ali Ameripour and exhibits thereto; any reply
memorandum that MBUSA may file; all of the records on file in this action; and
by such other written and oral argument as may be presented to the Court.
BACKGROUND
Plaintiff, Pablo Cesar
Montalvo Jacinto, filed a Complaint on 05/03/2023. The Complaint alleges three
causes of action – (1) Violation of Song-Beverly Act – Breach of Express
Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty, and
(3) Violation of the Song-Beverly Act Section 1793.2.
The instant motion
pertains to whether or not MBUSA, a nonsignatory to the “Retail Installment
Sale Contract – Simple Finance Charge (With Arbitration Provision)” (hereinafter
RISC), can compel arbitration even though Plaintiff and non-party, Mercedes-Benz
of Long Beach, were the two parties that signed the RISC that contained the
arbitration provision.
LEGAL STANDARD – MOTION TO COMPEL
ARBITRATION
CCP
§1281.2, governing orders to arbitrate controversies, provides in pertinent
part:
On petition of a
party to an arbitration agreement alleging the existence of a written agreement
to arbitrate a controversy and that a party to the agreement refuses to
arbitrate that 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, unless it determines that:
(a)
The
right to compel arbitration has been waived by the petitioner; or
(b)
Grounds
exist for recission of the agreement.
(CCP
§1281.2(a)-(b).
Under
the Federal Arbitration Act, arbitration agreements “shall be valid,
irrevocable and enforceable, save upon such grounds that exist at law or in
equity for the revocation of a contract.”
(9 U.S.C. section 2.)
There
is a strong public policy in favor of arbitration of disputes and any doubts
concerning the scope of arbitrable disputes should be resolved in favor of
arbitration. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9
(“courts will ‘indulge every intendment to give effect to such proceedings.’”)
(quotation omitted)). (See also AT&T Mobility, LLC v. Concepcion
(2011) 563 U.S. 333, 339.)
TENTATIVE
RULING
MBUSA
attaches as Exhibit 2 to the Ameripour Declaration, a “Retail Installment Sale
Contract – Simple Finance Charge (With Arbitration Provision)”. This RISC is
executed between Buyer, Pablo Cesar Montalvo Jacinto, and Seller-Creditor, Mercedes
Benz of Long Beach.
The RISC contains an arbitration provision that
provides in relevant part:
1.
EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY
ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.
2.
IF A DISPUTE IS ARBITRATED, YOU WILL GIVE UP YOUR RIGHT TO PARTICIPATE AS A
CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US
INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL
ARBITRATIONS.
3.
DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN
IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE
AVAILABLE IN ARBITRATION.
Any
claim or dispute, whether in contract, tort, statute or otherwise (including
the interpretation and scope of this Arbitration Provision, and the
arbitrability of the claim or dispute), between you and us or our employees,
agents, successors or assigns, which arises out of or relates to your credit
application, purchase or condition of this vehicle, this contract or any
resulting transaction or relationship (including any such relationship with
third parties who do not sign this contract) shall, at your or our election, be
resolved by neutral, binding arbitration and not by a court action […].
(Ameripour
Decl. ¶4, Ex. 2.)
Further
the arbitration provision provides:
Any
arbitration under this Arbitration Provision shall be governed by the Federal
Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning
arbitration.
(Ameripour
Decl. ¶4, Ex. 2.)
On
the first page of the RISC, “You” is defined as the Buyer; and “we,” or “us” refers
to the Seller-Creditor.
Here,
the Buyer is Plaintiff Pablo Cesar Montalvo Jacinto, and the Seller-Creditor is
Mercedes Benz of Long Beach, who is not a party to the instant lawsuit.
MBUSA
moves to compel arbitration under the RISC despite the fact that MBUSA is a
non-signatory to the RISC. MBUSA moves to compel arbitration under the two
theories of third party beneficiary and equitable estoppel.
However, this Court does not find MBUSA’s arguments on
equitable estoppel and the third party beneficiary doctrine availing in light
of: (1) Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324, rev.
granted, (Ford Motor Warranty Cases) (2) Montemayor v. Ford Motor Co.
(2023) 92 Cal.App.5th 958, rev. granted, (Montemayor) and (3) Kielar
v. Superior Court (2023) 94 Cal.App.5th 614, rev. granted.
Although MBUSA cites to Felisilda v. FCA US LLC
(2020) 53 Cal.App.5th 486, this Court notes it is following Ford Motor
Warranty Cases, rev. granted. “Of course, the rule under discussion has no
application where there is more than one appellate court decision, and such
appellate decisions are in conflict. In such a situation, the court exercising
inferior jurisdiction can and must make a choice between the conflicting
decisions.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County
(1962) 57 Cal.2d 450, 456.)
This Court finds that the Ford Motor Warranty Cases
are better reasoned and the instant set of facts distinguishable from Felisilda.
Ford Motor Warranty Cases and Montemayor adequately and
extensively explain why movant’s arguments on equitable estoppel and the third-party
beneficiary doctrine are inapplicable and distinguishable in the instant
scenario. Movant here, MBUSA, is not a party to the RISC in the instant case.
Moreover, Ford Motor and Montemayor are
Second District cases, while Felisilda is a Third District case.
[This Court notes that Ford Motor Warranty Cases,
Montemayor, and Kielar v. Superior Court all state, “Review
granted. See Cal Rules of Court 8.1105 and 8.1115 (and corresponding Comment,
par. 2, concerning rule 8.1115(e)(3).”]
Defendant’s motion to compel arbitration is DENIED.
Plaintiff’s Objections
Plaintiff
asserts an objection to the Declaration of Ameripour ¶4, Ex. 2. The Court notes
that Ex. 2 in the Ameripour Declaration is the RISC.
The objections asserted by Plaintiff are: 1) Lacks
foundation and personal knowledge; 2) Irrelevant and more misleading than probative;
3) Improper lay opinion; 4) Hearsay; 5) Authentication; 6) Speculative and
Prejudicial; and 7) This declaration improperly assumes facts and is
inadmissible speculation and conclusions.
Plaintiff’s Objections are OVERRULED.
Request for Judicial Notice by Plaintiff
Under
Evidence Code §452:
Judicial notice
may be taken of the following matters to the extent that they are not embraced
within Section 451:
(a) The
decisional, constitutional, and statutory law of any state of the United States
and the resolutions and private acts of the Congress of the United States and
of the Legislature of this state.
(b) Regulations
and legislative enactments issued by or under the authority of the United
States or any public entity in the United States.
(c) Official
acts of the legislative, executive, and judicial departments of the United
States and of any state of the United States.
(d) Records
of (1) any court of this state or (2) any court of record of the United States
or of any state of the United States.
(e) Rules of
court of (1) any court of this state or (2) any court of record of the United
States or of any state of the United States.
(f) The law
of an organization of nations and of foreign nations and public entities in
foreign nations.
(g) Facts and
propositions that are of such common knowledge within the territorial
jurisdiction of the court that they cannot reasonably be the subject of
dispute.
(h) Facts and
propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.
(Ibid..)
Under Evidence Code 453:
The trial court
shall take judicial notice of any matter specified in Section 452 if a party
requests it and:
(a) Gives
each adverse party sufficient notice of the request, through the pleadings or
otherwise, to enable such adverse party to prepare to meet the request; and
(b) Furnishes
the court with sufficient information to enable it to take judicial notice of
the matter.
(Ibid.)
Plaintiff requests judicial notice of:
1. The Appellate Court’s Opinion, in Martha Ochoa
v. Ford Motor Company (2023) 89 Cal.App.5th 1324, affirming the Trial
Court’s Order denying Defendant Ford Motor Company’s Motion to Compel
Arbitration is attached hereto as Exhibit 1.
2. The Appellate Court’s Opinion, in Mark Kielar v.
Hyundai Motor America (Case No. C096773; Superior Court No. S-CV-0048230)
Certified for Publication dated August 16, 2023, that the Trial Court erred in
ordering arbitration is attached hereto as Exhibit 2.
3. The Ninth’s Circuit, February 12, 2022, Opinion, in
Ngo v. BMW of North America, LLC et al., (9th Cir. 2022) 23 F.4th 942.
attached hereto as Exhibit 3.
Plaintiff’s requests for judicial notice are GRANTED.
Defendant’s Request for Judicial Notice
Defendant
requested judicial notice of Plaintiff’s Complaint filed on or about May 3,
2023 attached to the Ameripour Declaration at Exhibit 1.
Defendant’s request for judicial notice is GRANTED.