Judge: Curtis A. Kin, Case: 21STCV10527, Date: 2022-09-08 Tentative Ruling
Case Number: 21STCV10527 Hearing Date: September 8, 2022 Dept: 72
MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
Date: 9/8/22
(8:30 AM)
Case: Luis Rivas et al. v. Nissan North America (21STCV10527)
TENTATIVE RULING:
Defendant Nissan North America, Inc.’s Motion to Compel Arbitration and
Stay Proceedings is DENIED. Defendant Nissan North America, Inc.’s Motion for Stay of Proceedings is DENIED.
All requests to take
judicial notice are DENIED as “unnecessary to the resolution” of the
issues before the Court. (Martinez v. San Diego County Credit Union
(2020) 50 Cal.App.5th 1048, 1075.)
Defendant Nissan North America, Inc., the manufacturer or
distributor of the subject vehicle, seeks to compel arbitration of plaintiffs Luis Rivas and Rosa Garcia’s claims against
it under the provisions of the Motor Vehicle Lease Agreement (“Lease
Agreement”). (Chung Decl. ¶ 4 & Ex. 3.)
The Court finds that defendant has waived the right to seek
arbitration. “When an arbitration agreement does not specify the time within which
arbitration must be demanded, a reasonable time is allowed; a party who does
not demand arbitration within a reasonable time is deemed to have waived the
right to arbitration.” (Spear v. California State Auto. Assn. (1992) 2
Cal.4th 1035, 1043.) A fact to consider in determining whether arbitration was
demanded within a reasonable time is “any prejudice the opposing party suffered
because of the delay.” (Ibid.)
As plaintiffs note, on April 20, 2021, defendant filed an
Answer to the Complaint, wherein defendant asserted an affirmative defense
based on its right to seek arbitration of plaintiffs’ claims. (Answer ¶ 21.) On
July 20, 2021, the Court set trial to begin on October 24, 2022. On June 6,
2022, defendant filed the instant motion to compel arbitration and noticed the
hearing for September 8, 2022.
On July 15, 2022, while this motion was pending, defendant
demanded expert discovery pursuant to CCP § 2034.210. (Cohen Decl. ¶ 29 &
Ex. 24.) Plaintiff responded to this demand. (Cohen Decl. ¶ 30 & Ex. 25.)
Here, the Court finds that plaintiff’s delay of 17 months
from the assertion of arbitration as an affirmative defense to the hearing on
this motion constitutes a waiver of the right to seek arbitration. (Sobremonte
v. Superior Court (1998) 61 Cal.App.4th 980, 992 [stating that delay for a
long period before seeking a stay is a factor in determining waiver].) During
this delay, the Court set trial in this action. Even though defendant was aware
of an arbitration agreement, as evidenced by its answer, defendant waited
approximately 14 months to file the instant motion. Even though trial had
already been set to begin on October 24, 2022, defendant set the hearing for
September 8, 2022, a month and a half before trial.
Because trial is imminent, plaintiff would be prejudiced if
this action were compelled to arbitration. At this juncture, arbitration would
delay the resolution of this action, forcing plaintiff to remain in possession
of the subject vehicle while the parties coordinate a date for arbitration with
the arbitrator. (Cohen Decl. ¶ 31.)
In the reply, defendant cites Quach v. California Commerce Club, Inc. (2022) 78 Cal.App.5th 470 for the assertion that its litigation actions,
including the filing of an answer and answering discovery, are insufficient to constitute
waiver. Quach was granted review by the California Supreme Court and is
therefore only citable for its persuasive value. (Rule of Court 8.115(e)(1); Quach
v. California Commerce Club (2022) 2022 WL 3650711, at *1.) In any event,
the defendant in Quach filed its motion to compel arbitration seven
months before the trial, and the trial court granted the motion approximately
five months before trial. (Quach, 78 Cal.App.5th at 475-76.) The Court
of Appeal in Quach found that moving to compel arbitration seven months
before the operative trial date does not constitute waiting until the eve of
trial to seek arbitration. (Id. at 479.)
Here, defendant
moved to compel arbitration only a few months before trial and—more to the
point—set the hearing on such motion only month and a half before trial, after
expert discovery has commenced. Defendant made no attempt to schedule the
hearing on its motion earlier, including by opting not to move ex parte for
an earlier hearing date. Defendant does not attempt to explain why it waited more
than a year without seeking arbitration. Under these circumstances, the Court
finds that defendant “unduly delayed and waited until the eve of trial to seek
arbitration.” (St. Agnes Medical Center v. PacifiCare of California
(2003) 31 Cal.4th 1187, 1204.)
Accordingly, the Court finds that defendant waived the right
to compel arbitration. The motions are DENIED.