Judge Christopher K. Lui, Case 21STCV15913 2023-01-18 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Defendant Nissan North America, Inc.’s motion to compel arbitration is GRANTED. The case is ordered stayed pending arbitration. (Civ. Proc. Code, § 1281.4.)

Defendant requests that the Court take judicial notice of the following: (1) Complaint filed in this action; (2) Answer filed in this action; (3) Notice of Entry of Dismissal and Proof of Service, filed in Sacramento Superior Court by Plaintiffs Dina C. Felisilda and Pastor O. Felisilda on February 11, 2016 in the matter of Dina C. Felisilda, et al, v. FCA US LLC, et al. (34-2015-00183668). Requests Nos. 1 – 3 are GRANTED per Evid. Code, § 452(d)(court records).

Defendant Nissan North America, Inc. moves to compel arbitration and stay this action.

The Court first addresses Plaintiff’s argument that Defendant waived the right to compel arbitration.

Waiver of the right to arbitrate is assessed through a number of factors, including: “‘“‘(1) whether the party‘s actions are inconsistent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparation of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place”; and (6) whether the delay “affected, misled, or prejudiced” the opposing party.’”’ [Citation.]” (Citation omitted.)

“No one of these factors predominates and each case must be examined in context.” (Citations omitted.) The question of prejudice, however, “is critical in waiver determinations.” (Citations omitted].)

Here, the Complaint was filed on April 28, 2021. Defendant filed its answer on June 7, 2021, asserting a demand for arbitration at ¶ 21. There was no law and motion heard until Defendant filed this motion to compel arbitration on December 15, 2022.

Plaintiff argues that Defendant has waived the right to compel arbitration by waiting nearly and year and a half until 40 days before the trial date to file this motion to delay resolution of this matter and Plaintiff’s ability to secure relief, taking into consideration the arbitration process and subsequent confirmation of judgment. However, a delay in Plaintiff obtaining relief is itself not the type of prejudice which will lead to a finding of waiver.

Mere delay that does not cause prejudice is insufficient to support a finding of waiver. Even merely participating in discovery, without a showing of prejudice, does not constitute a waiver “if there has been no judicial litigation of the merits of arbitrable issues. (Quach v. Cal. Commerce Club, Inc. (2022) 78 Cal.App.5th 470, 478.) Delay in asserting the right to arbitrate is not unreasonable merely because the right could have been asserted it at an earlier time. (Id. at 484.) A delay is unreasonable if it causes a party to expend resources it otherwise would have avoided in arbitration, or by allowing the party asserting arbitration to take advantage of judicial processes not available in arbitration. (Id.)

Here, Defendant admits that Plaintiff propounded discovery requests upon Defendant, and Defendant responded to those requests. (Liss Decl., ¶¶ 9-10.) This would favor Plaintiff, not Defendant. Neither party indicates whether Defendant served discovery upon Plaintiff, to which Plaintiff responded.

The Court does not find that there was an unreasonable delay which resulted in prejudice to Plaintiff by denying him the efficiencies of arbitration. (Spracher v. Paul M. Zagaris, Inc. (2019) 39 Cal.App.5th 1135, 139-40.) The Court does not find that the “litigation machinery has been substantially invoked” such that the parties were “well into preparation of a lawsuit” before this motion was filed. (Id. at 1138.) Plaintiff did not demonstrate such preparation of the lawsuit. Given the absence of any law and motion, it does not appear the litigation machinery was substantially invoked.

“‘[W]aiver does not occur by mere participation in litigation”’ if there has been no judicial litigation of the merits of arbitrable issues … . [Citation.]” (St. Agnes Medical Center, supra, 31 Cal.4th at p. 1203.) In the instant case, there has “been no judicial litigation of the merits of arbitrable issues,” and therefore no waiver on that basis. (Ibid.)

Accordingly, the Court does not find that Defendant waived the right to compel arbitration.

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4^th 1094.) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

On August 30, 2015, Plaintiff entered into a Sales Contact with non-party Raceway Nissan to purchase a 2015 Nissan Sentra. (Declaration of Andrew P. Liss, Exh. 4) Plaintiff’s signature and initials appear throughout the agreement. Plaintiff does not challenge the authenticity of this document, nor that he signed this document.

The Agreement includes the following arbitration clause which states in pertinent part as follows:

1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.

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. If federal law provides that a claim or dispute is not subject to binding arbitration, this Arbitration Clause shall not apply to such claim or dispute. Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not as a class action. You may choose the American Arbitration Association, 1633 Broadway, 10^th Floor, New York, New York 10119 (www.adr.org), or any other organization subject to our approval. You may get a copy of the rules of an arbitration organization by contacting the organization or visiting its website. . . .

Agreement to Arbitrate: By signing below, you agree that, pursuant to eh Arbitration Provision on page 5 of this contract, you or we may elect to resolve any dispute by neutral, binding arbitration and not by a court action. See the Arbitration Provision for additional information concerning the agreement to arbitrate.

YOU AGREE TO THE TERMS OF THIS CONTRACT. YOU CONFIRM THAT BEFORE YOU SIGNED THIS CONTRACT, WE GAVE IT TO YOU, AND YOU WERE FREE TO TAKE IT AND REVIEW IT. YOU ACKNOWLEDGE THAT YOU HAVE READ ALL PAGES OF THIS CONTRACT, INCLUDING THE ARBITRATION PROVISION ON THIS PAGE, BEFORE SIGNING BELOW. YOU CONFIRM THAT YOU RECEIVED A COMPLETELY FILLED-IN COPY WHEN YOU SIGNED IT.

The Court finds that Plaintiff agreed to arbitrate the Song-Beverly Act claims asserted in the Complaint.

The Court addresses whether the question of arbitrability has been delegated to the arbitrator.

Courts have held that “‘[t]here are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. [Citation.] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.’” (Aanderud, supra, 13 Cal.App.5th at p. 892.)

First, the arbitration clause does not incorporate a specific arbitration forum’s rules by reference. While the clause mentions the American Arbitration Association, it also leaves open the possibility that some other organization may conduct the arbitration. As such, there is no incorporation of any specific arbitration forum’s rules which may constitute a clear delegation, which courts have found to be possible. (See, e.g., Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892-93.)

The purported delegation clause in the subject arbitration provision reads as follows:

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.

Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892 addressed the language in the subject arbitration clause that:

[The parties] “agree to arbitrate all disputes, claims and controversies arising out of or relating to … (iv) the interpretation, validity, or enforceability of this Agreement, including the determination of the scope or applicability of this Section 5 [the “Arbitration of Disputes” section]. …” This language delegates to the arbitrator questions of arbitrability and is clear and unmistakable evidence that the parties intended to arbitrate arbitrability. (See, e.g., Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1560 [173 Cal. Rptr. 3d 241] [noting delegation clause that provided “ ‘[t]he arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement’” was clear and unmistakable]; Momot v. Mastro (9th Cir. 2011) 652 F.3d 982, 988 [language that delegated authority to arbitrator to determine “‘the validity or application of any of the provisions of’” the arbitration clause was a clear and unmistakable agreement to arbitrate the question of arbitrability].)

The Aanderud court used the term “arbitrability” to refer to questions of “interpretation, validity or enforceability” and “scope or applicability.” (Id. at 892.) Based upon this holding, the reference in the subject arbitration clause that the parties delegate any claim or dispute including “the interpretation and scope” of the arbitration provision, and “the arbitrability of this claim or dispute,” is a clear and unmistakable delegation of the issues of validity and enforceability, i.e., as to the defense of unconscionability, which affects validity or enforceability. “The doctrine of unconscionability is a defense to the enforcement of a contract or a term thereof. (Civ. Code, § 1670.5; California Grocers Assn. v. Bank of America (1994) 22 Cal. App. 4th 205, 213 [27 Cal. Rptr. 2d 396].)” (Marin Storage & Trucking, Inc. v. Benco Contracting & Eng'g, Inc. (2001) 89 Cal. App. 4th 1042, 1049.)

The Court finds that the delegation of the question of “arbitrability” delegates issues of scope, applicability, interpretation, validity and enforceability, including the question of unconscionability, to the arbitrator.

However, absent a clear delegation of the question of whether third persons are entitled to enforce the arbitration agreement, the Court will decide whether moving Defendant Nissan North America, Inc.—which is not a party to the arbitration agreement—may enforce the arbitration agreement. The Court must decide issues of contract formation, i.e., whether the parties agreed to arbitrate at all.

[W]e conclude that although the delegation clause provides that the arbitrator “shall have exclusive authority to resolve any dispute relating to … formation of the arbitration policy,” as a matter of law, the question whether the parties entered into an agreement to arbitrate anything at all is for a court to decide.

Moving party Defendant Nissan North America, Inc., which is not a signatory to the arbitration agreement, argues that it is a third-party beneficiary of the arbitration clause in the Lease Agreement. This argument is not persuasive, as there is no language whereby the parties expressly made a third party the beneficiary of the arbitration clause.

To invoke the third party beneficiary exception, Tweed and TFI had to show that the arbitration clause of the account agreement was “made expressly for [their] benefit.” (Civ. Code, § 1559.) It is “not necessary that the [*839] beneficiary be named and identified as an individual. A third party may enforce a contract where he shows that he is a member of a class of persons for whose benefit it was made.” (Garratt v. Baker (1936) 5 Cal.2d 745, 748 [56 P.2d 225]; accord, Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 967 [134 Cal. Rptr. 3d 39].)

(Ronay Family Limited Partnership v. Tweed (2013) 216 Cal.App.4th 830, 838-39.)

Defendant Nissan North America, Inc. does not fall within the class of “our employees, agents, successors or assigns.” There is no intent to benefit a class of persons other than these. Notably, Felisilda, discussed below, did not rely upon a third party beneficiary theory.

Nonetheless, although Defendant Nissan North America, Inc. is not a signatory to the Agreement, Plaintiff expressly agreed to arbitrate any statutory claim against a third party (such as Defendant Nissan North America, Inc.), if there is a claim or dispute between the parties to the Contract which “arises out of or relates to [the] . . . purchase or condition of this vehicle, this contract or any resulting transaction or relationship with third parties who do not sign this contract), such as Defendant Nissan North America.

Here, Plaintiff brings causes of action for violation of the Song-Beverly Consumer Warranty Act, which are statutory claims arising out of or relating to the condition of the vehicle, i.e., it is defective and fails to conform to warranties to preserve or maintain the utility or performance of the vehicle. In this regard, Plaintiff is equitably estopped from denying that the arbitration clause applies to the claims against non-signatory Defendant Nissan North America, Inc., because such claims are “intimately founded in and intertwined” with the contractual obligations of non-party signatory Nissan of Van Nuys (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 495-98.)

Plaintiff alleges that along with the sale of the Vehicle, Plaintiff received written warranties and other express and implied warranties. (Complaint, ¶ 6.) Plaintiff is equitably estopped from denying that the statutory claims against Defendant Nissan North America, Inc., do not relate to the condition of the subject vehicle—claims which are subject to arbitration. (Felisilda, supra, 53 Cal.App.5th at 495-98.

As a general rule, only a party to an arbitration agreement may enforce the agreement. (Thomas, supra, 204 Cal.App.4th at p. 613.) However, there are several exceptions that allow a nonsignatory to invoke an agreement to arbitrate. (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1236–1237 [123 Cal. Rptr. 3d 429] (JSM Tuscany).) The doctrine of equitable estoppel is one of the exceptions. (Ibid.)

Under the doctrine of equitable estoppel, “as applied in ‘both federal and California decisional authority, a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are “intimately founded in and intertwined” with the underlying contract obligations.’ (Boucher[ v. Alliance Title Co., Inc. (2005)] 127 Cal.App.4th [262,] 271 [25 Cal. Rptr. 3d 440]; see Goldman[ v. KPMG, LLP (2009)] 173 Cal.App.4th [209,] 217–218 [92 [*496] Cal. Rptr. 3d 534].) ‘By relying on contract terms in a claim against a nonsignatory defendant, even if not exclusively, a plaintiff may be equitably estopped from repudiating the arbitration clause contained in that agreement.’ (Boucher, supra, 127 Cal.App.4th at p. 272; see Goldman, supra, 173 Cal.App.4th at p. 220.)” (JSM Tuscany, supra, 193 Cal.App.4th at p. 1237.)

“Where the equitable estoppel doctrine applies, the nonsignatory has a right to enforce the arbitration agreement.” (JSM Tuscany, supra, 193 Cal.App.4th at p. 1237, fn. 18.) “‘The fundamental point’ is that a party is ‘not entitled to make use of [a contract containing an arbitration clause] as long as it worked to [his or] her advantage, then attempt to avoid its application in defining the forum in which [his or] her dispute … should be resolved.’” (Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 306 [226 Cal. Rptr. 3d 797], quoting NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 84 [100 Cal. Rptr. 2d 683].) “In any case applying equitable estoppel to compel arbitration despite the lack of an agreement to arbitrate, a nonsignatory may compel arbitration only when the claims against the nonsignatory are founded in and inextricably bound up with the obligations imposed by the agreement containing the arbitration clause.” (Goldman v. KPMG, LLP, supra, 173 Cal.App.4th at p. 219.) In determining whether plaintiffs' claim is founded on or intimately connected with the sales contract, we examine the facts of the operative complaint. (Goldman, at pp. 229–230.)

Based on language in the sales contract and the nature of the Felisildas' claim against FCA, we conclude the trial court correctly ordered that the entire matter be submitted to arbitration. In signing the sales contract, the Felisildas agreed that “[a]ny claim or dispute, whether in contract, tort, statute or otherwise … between you and us … which arises out of or relates to … [the] condition of this vehicle … shall … be resolved by neutral, binding arbitration and not by a court action.” (Italics added.) Here, the Felisildas' claim against FCA relates directly to the condition of the vehicle.

In their complaint, the Felisildas alleged that “express warranties accompanied the sale of the vehicle to [them] by which [manufacturer] FCA … undertook to preserve or maintain the utility or performance of [their] vehicle or provide compensation if there was a failure in such utility or performance.” Thus, the sales contract was the source of the warranties at the heart of this case. The Felisildas noted they “delivered the vehicle to an authorized FCA … repair facility[1] for repair of the nonconformities.” However, “FCA … has failed to [*497] either promptly replace the new motor vehicle or promptly make restitution in accordance with the Song-Beverly Consumer Warranty Act.”

The Felisildas' claim against FCA directly relates to the condition of the vehicle that they allege to have violated warranties they received as a consequence of the sales contract. Because the Felisildas expressly agreed to arbitrate claims arising out of the condition of the vehicle—even against third party nonsignatories to the sales contract—they are estopped from refusing to arbitrate their claim against FCA. Consequently, the trial court properly ordered the Felisildas to arbitrate their claim against FCA.

We reject the Felisildas' reliance on Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1122 (Kramer). In Kramer, purchasers of Toyota vehicles agreed to arbitrate between themselves and dealerships. (Id. at p. 1128.) The retail sales contracts in Kramer did not contain any language that could be construed as extending the scope of arbitration to third parties. (Ibid.) By contrast, the arbitration provision in this case provides for arbitration of disputes that include third parties so long as the dispute pertains to the condition of the vehicle. As the operative complaint makes clear, the Felisildas' claim arises out of the condition of the vehicle.

We are also not persuaded by the Felisildas' reliance on Soto v. American Honda Motor Co. Inc. (N.D.Cal., Nov. 20, 2012, No. C 12-01377 SI) 2012 WL 5877476 (Soto I). In Soto I, the United States District Court ruled a vehicle [**17] purchaser's product liability claim against the manufacturer was not “intertwined” with the sales contract merely because there would have been no warranty in the absence of a sale. (Id. at p. *3.) In so determining, the district court in Soto I rejected “the ‘but-for’ test or the ‘makes reference to’ test” relied upon by another federal district court in Mance v. Mercedes-Benz USA (N.D.Cal., Sept. 28, 2012, No. CV 11-03717 LB) 2012 WL 4497369. (Soto I, at p. *3.)

We need not resolve the conflict between the Soto I and Mance federal district courts regarding the applicability of the “but-for test” for equitable estoppel as it relates to arbitrability. First, we note that, although “the decisions of federal district and circuit courts, although entitled to great weight, are not binding on state courts even as to issues of federal law.” (Alan v. Superior Court (2003) 111 Cal.App.4th 217, 229 [3 Cal. Rptr. 3d 377].)

Second, Soto I involved an arbitration provision that did not expressly include third parties as does the language of the sales contract in this case. The district court's decision in Soto I was issued on a motion for reconsideration after the manufacturer's original motion to compel arbitration was [*498] denied. (Soto v. American Honda Motor Co. (N.D.Cal. 2012) 946 F.Supp.2d 949, 952 (Soto II).) Soto II is illuminating because it notes that the arbitration provision in that case stated that “[e]ither you [(i.e., the purchaser)] or we [(i.e., dealership)] may choose to have any dispute between us decided by arbitration and not in court or by jury trial.’” (Id. at p. 952.) As in Kramer, supra, 705 F.3d 1122, the arbitration provision lacked the key language present in this case, namely an express extension of arbitration to claims involving third parties that relate to the vehicle's condition. The express language of the arbitration agreement in this case sets it apart from the arbitration provisions in the Soto and Kramer decisions.

We are also not persuaded by the Felisildas' reliance on Jurosky v. BMW of North America, LLC (S.D.Cal. 2020) 441 F.Supp.3d 936. Jurosky involved an arbitration clause with the same language as in this case insofar as it stated: “Any claim or dispute, whether in contract, tort, statute or otherwise … , between you and us or our employees, agents, successors or assigns, which arises out of or relates to … purchase or condition of this vehicle, the cont[r]act 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.” (Id. at pp. 967–968, italics added.) The Jurosky court determined that this language was “the same ‘you and us’ language” that presented in Kramer, supra, 705 F.3d 1122, and therefore did not compel a vehicle purchaser to arbitrate claims against the manufacturer. (Jurosky, at p. 968.) However, as we noted above, the arbitration clause in the retail sales contract presented in Kramer did not extend the scope of arbitration to any third parties. (Kramer, supra, 705 F.3d at p. 1125.) We decline to follow the Jurosky court's glossing over language in an arbitration clause that expressly includes third party nonsignatories.

We also reject the Felisildas' contention that the rule requiring mutual consent to arbitrate is violated for lack of the Felisildas' consent to arbitrate their claim against FCA. As explained above, the Felisildas' agreement to the sales contract constituted express consent to arbitrate their claims regarding vehicle condition even against third parties. Their consent preceded the motion to compel filed in this case. . . . .

(Felisilda, supra, 53 Cal.App.5th at 495-98 [bold emphasis and underlining added].)

Plaintiff’s arguments in the Opposition regarding federal district court cases are primarily addressed in Felisilda. To the extent that Plaintiff attacks the logic of Felisilda and characterizes it as incorrectly decided, “[t]rial courts are of course bound by the decisions of the Court of Appeal.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 690 n. 28.)

Plaintiff also argues that this case is distinguishable from Felisilda because in that case, the dealership was the party moving to compel arbitration, whereas here, the dealership is not named, and only a non-signatory is named. However, this argument ignores the purpose of the equitable estoppel doctrine, which applies when a party seeks to avoid arbitration by suing nonsignatory defendants.

“ ‘[T]he equitable estoppel doctrine applies when a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory defendants for claims that are “‘based on the same facts and are inherently inseparable’ ” from arbitrable claims against signatory defendants.’ ” (Turtle Ridge, supra, at p. 833, quoting Metalclad, supra, at pp. 1713–1714.) Claims that rely upon, make reference to, or are intertwined with claims under the subject contract are arbitrable. (Boucher, supra, 127 Cal.App.4th at pp. 269–270.)

(JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1238 [bold emphasis added].)

Here, the tactic of not suing the signatory to the arbitration agreement, and only a non-signatory to avoid arbitration, is the tactic which the doctrine of equitable estoppel seeks to avoid. As Felisilda held, where the sales contract was the source of the manufacturer warranties which accompanied the sale of the vehicle to plaintiff, equitable estoppel applies. (Felisilda, supra, 53 Cal.App.5th at 496-97.)

In this regard, the Court does not find to be persuasive the various federal cases cited by Plaintiff in the Opposition which criticize, factually distinguish and decline to follow Felisilda. Unless and until Felisilda is overturned, this Court will follow that decision, regardless of the reasoned criticism leveled against it by federal courts[2]. Further, the Ninth Circuit’s opinion is of persuasive value, not binding precedent. “Decisions by the Ninth Circuit have no greater persuasive force on California courts than those of other circuits. (Citation omitted.)” Ovitz v. Schulman (2005) 133 Cal.App.4th 830, 848.

Accordingly, moving Defendant Nissan North America is entitled to enforce the arbitration agreement against Plaintiff.

The motion to compel arbitration is GRANTED. The case is ordered stayed pending arbitration. (Civ. Proc. Code, § 1281.4.)

[1] ¶ 17 of the Complaint alleges that “Plaintiff delivered the Subject Vehicle to an authorized AMERICAN HONDA repair facility for repair of the nonconformities.”

[2] Conceivably, there may be situations where Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, is factually distinguishable if the language of the arbitration agreement is not as broad as the language in the Felisilda arbitration agreement. For instance, if the arbitration clause does not expressly reference statutory claims, nor purport to relate to disputes over the condition of the vehicle, nor as to third parties who do not sign the Agreement, such terms were central to the Felisilda court’s estoppel argument and their absence may sufficiently distinguish that decision.

Moreover, the arbitration agreement might expressly require that a claim asserted against non-signatories be made in connection with a claim asserted against a signatory, in which case, the arbitration clause would not apply to a lawsuit only asserted against a non-signatory.