Judge: Curtis A. Kin, Case: 21STCV31550, Date: 2023-03-02 Tentative Ruling

Case Number: 21STCV31550    Hearing Date: March 2, 2023    Dept: 72

MOTION TO COMPEL ARBITRATION

AND STAY PROCEEDINGS

Date:               3/2/23 (8:30 AM)                                           

Case:               Susan Rivera v. Nissan North America Inc. (21STCV31550)

TENTATIVE RULING:

Defendant Nissan North America, Inc.’s Motion to Compel Arbitration and Stay Proceedings is DENIED.

Defendant’s 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. moves to compel arbitration of plaintiff Susan Rivera’s claims against it. Defendant fails to demonstrate that plaintiff agreed to arbitration of the claims asserted in the instant action. “The party petitioning to compel arbitration ‘bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence….’ [Citation.]” (Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1249.) Defendant contends that plaintiff signed two provisions in the Retail Installment Sales Contract (“RISC”), whereby she agreed to arbitration. However, the RISC contains no signature from plaintiff, next to any of the arbitration provisions or otherwise. (Yu Decl. ¶ 5 & Ex. 4; See Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1027 [“In the absence of fraud, mistake, or another vitiating factor, a signature on a written contract is an objective manifestation of assent to the terms set forth there”].) Absent any manifestation of intent in the RISC, defendant fails to meet its burden to demonstrate that plaintiff agreed to arbitration.

Even if defendant presented a copy of the RISC signed by plaintiff, the Court would find 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.” (Spear, 2 Cal.4th at 1043.)

On October 1, 2021, defendant filed an Answer to the Complaint, wherein defendant asserted an affirmative defense based on its right to seek arbitration of plaintiff’s claims. (Answer ¶ 21.) On January 3, 2022, defendant filed a Case Management Statement without checking the box indicating that it was willing to participate in binding private arbitration. (1/3/22 Case Management Statement at 3.) On January 21, 2022, the Court set trial to begin on March 6, 2023. Nearly one year later, on December 14, 2022, defendant filed the instant motion to compel arbitration and noticed the hearing for March 2, 2023.

In the interim, the parties have engaged in active litigation before this Court.  On December 30, 2021, plaintiff propounded four sets of written discovery on defendant. (Yashar Decl. ¶ 5.) On February 15, 2022, defendant responded to plaintiff’s discovery. (Yashar Decl. ¶ 5.) On June 1, 2022, defendant filed an opposition to plaintiff’s motion to compel further responses to Requests for Production, Set One. (Yashar Decl. ¶ 5.)

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 there may be 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 March 6, 2023, defendant set the hearing for March 2, 2023, two court days 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, when plaintiff has already filed trial documents in preparation for a trial set to begin two court days from the hearing.  According to the docket, on February 21, 2023, plaintiff filed a trial brief, witness list, and proposed jury instructions.

In opposition, defendant cites Quach v. California Commerce Club, Inc. (2022) 78 Cal.App.5th 470 for the assertion that its litigation actions 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) 78 Cal.App.5th 470, 474.) 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, by marked contrast, defendant waited well over a year to file the instant motion and filed the motion only a few months before trial, after having actively engaged in litigation over discovery in this action. Defendant does not attempt to explain why it has delayed for so long.  Trial is scheduled to commence in days, and plaintiff has prepared for trial in reliance. Under these circumstances, the Court find 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 motion is DENIED.