Judge: David A. Rosen, Case: 22GDCV00650, Date: 2023-03-02 Tentative Ruling

Case Number: 22GDCV00650    Hearing Date: March 2, 2023    Dept: E

Hearing Date: 03/03/2023 – 8:30am
Case No: 22GDCV00650
Trial Date: Unset
Case Name: ARGINA H. GRIGORYAN, an indiv; and ODET YEROUMAN, an indiv; v. NISSAN NORTH AMERICA, Inc., a Delaware Corporation, and DOES 1-10

TENTATIVE RULING ON MOTION TO COMPEL ARBITRATION

Moving Party: Defendant, Nissan North America, Inc.

Responding Party: Plaintiffs, Argina H. Grigoryan and Odet Yerouman (Plaintiffs)

Moving Papers: Notice of Motion; Memo; Mejia Declaration; Proof of Service; Request for Judicial Notice; Proposed Order

Opposing Papers: Opposition; Pakbaz Declaration

Reply Papers: Reply

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok

The Reply points out that the Opposition was untimely; however, the Court will still consider the untimely Opposition.

CCP §1290.4
“A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.” (CCP §1290.4(a).) “If the arbitration agreement does not provide the manner in which such service shall be made and the person on whom service is to be made has previously appeared in the proceeding or has previously been served in accordance with subdivision (b) of this section, service shall be made in the manner provided in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 of this code.” (CCP §1290.4(c).)

Here, Plaintiff has already appeared as indicated by the fact that Plaintiff filed the action. Defendant appears to have served this notice and the accompanying papers of this motion by e-mail, and Opposition has made no objections to how the instant motion has been served.

RELIEF REQUESTED
Defendant, Nissan North America, Inc., moves this Court for an order compelling Plaintiffs, Argina H. Grigoryan and Odet Yerouman, to arbitrate this matter and to stay the proceedings pending completion of arbitration.

Further, Defendant’s notice of motion states, “Defendant brings this Motion pursuant to the Federal Arbitration Act on the grounds that Plaintiffs expressly agreed to arbitrate all claims asserted in the complaint. Defendant’s request for a mandatory stay of proceedings is brought pursuant to 9 U.S.C. § 3. Defendant further contends that all proceedings and discovery are stayed until this Motion is decided and, if granted, during the pendency of the arbitration, pursuant to Code of Civil Procedure § 1281.4, which expressly provides that further proceedings “shall” be stayed “until an arbitration is had.” (See Twentieth Century Fox Film Corp. v. Superior Court (2000) 79 Cal.App.4th 188, 192 [“This statute is clear and unambiguous: it requires that the trial court stay an action pending before it while an application to arbitrate the subject matter of the action is pending in a court of competent jurisdiction.”].)” (Def. Notice of Motion p. 2.)

 

BACKGROUND
On 09/30/2022, Plaintiffs filed a Complaint alleging 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 against Defendant, Nissan North America, Inc.

Plaintiffs allege that on December 21, 2019, they purchased a 2017 Nissan Altima, that Nissan North America, Inc. warranted the subject vehicle and agreed to preserve or maintain the utility or performance of Plaintiff’s vehicle or to provide compensation if there was a failure in such utility or performance, and that the subject vehicle was delivered to Plaintiff with serious defects and nonconformities to warranty.

The instant motion pertains to whether or not Defendant (Nissan North America, Inc.) a nonsignatory to the “Retail Installment Sale Contract – Simple Finance Charge (With Arbitration Provision” (RISC), can compel arbitration of this action under the RISC when it was not a party to the RISC. The only parties to the RISC were Buyer (Grigoryan), Co-Buyer (Yeroumian), and Seller-Creditor (Glendale Nissan).

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.) 

 

ANALYSIS
Defendant argues that Plaintiffs can be compelled to arbitration under three grounds: (1) The RISC contains a valid Arbitration Provision to which Plaintiffs assented; (2) Defendant may enforce the Arbitration Provision pursuant to the doctrine of equitable estoppel as instructed by the California Court of Appeal in Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 496-99 because Felisilda held that equitable estoppel prevents Plaintiffs from avoiding her obligations to arbitrate where, as here, her claims are intimately founded in, and intertwined with, her sales contract and the purchase and the condition of her vehicle; and (3) As a third-party beneficiary, Nissan North America, Inc. may enforce the Arbitration Provision because it expressly encompasses claims arising out of relationships with third parties who do not sign the sales contract.

 

In purchasing the subject vehicle, Plaintiffs executed a “Retail Installment Sale Contract – Simple Finance Charge (With Arbitration Provision)” (RISC) with the Seller-Creditor, Glendale Nissan. (Ex. C. Mejia Decl.) 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…

 

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.

 

(Mejia Decl. Ex. C-10.)

 

On the first page of the RISC, “You,” is defined as the Buyer and Co-Buyer, and “we” or “us” is defined as Seller-Creditor.

 

Defendant concedes it is not a signatory to the RISC; nonetheless, it argues it can compel arbitration under the RISC under the theories of equitable estoppel and/or third-party beneficiary.

 

Equitable Estoppel

Equitable estoppel associated with a nonsignatory compelling arbitration arises as follows:

 

To summarize, under 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. 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. The focus is on the nature of the claims asserted by the plaintiff against the nonsignatory defendant. That the claims are cast in tort rather than contract does not avoid the arbitration clause. Moreover, the federal decisional authority is not limited, as plaintiff suggests, to cases in which a contract with a subsidiary corporation is relied upon to compel arbitration with a parent entity. The fundamental point is that a party may not make use of a contract containing an arbitration clause and then attempt to avoid the duty to arbitrate by defining the forum in which the dispute will be resolved.

 

(Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 271-272 [internal citations omitted].)

 

Defendant argues it can compel arbitration because Plaintiffs’ claims arise out of, and are intertwined with, the obligations of the RISC. Defendant relies on the case of Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 (Felisilda) to support its argument.

 

In Felisilda, the Court of Appeal upheld an order compelling the plaintiffs to arbitration with the manufacturer of the alleged lemon vehicle even though it was not a signatory to the contract. The Felisilda court stated:

 

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 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 **648 this case. The Felisildas noted they “delivered the vehicle to an authorized FCA ... repair facility 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.

 

(Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 496-496.)

 

In Opposition, Plaintiffs argue that arbitration cannot be compelled under the theories of equitable estoppel or third-party beneficiary, and Plaintiffs argue that Felisilda is not controlling because it is distinguishable. Plaintiffs argue that Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942 (Ngo) expressly held that a non-signatory manufacturer to an arbitration agreement has no standing to compel arbitration in the context of a Song-Beverly case.

 

Discussion – Equitable Estoppel

 

Preliminary Matter
One confusing aspect of moving, opposing, and reply papers is that moving Defendant relies and cites to both federal and state law. In Opposition, Plaintiffs argue that federal law should be applied at certain times, and then at other times, Plaintiffs change course and argue that state law should be applied. In Reply, Defendant then argues that state law, and not federal, should be applied despite the fact that it seemed to cite both federal and state law in its moving papers. In particular, the Reply states, “ State court litigation will work its way up to the Courts of Appeal and then, by petition for review, to the California Supreme Court. And, of course, 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 Ct. (2003) 111 Cal.App.4th 217, 229; citing Mullaney v. Woods (1979) 97 Cal.App.3d 710, 719; See also People v. Bradley (1969) 1 Cal. 3d 80, 86 (distinguished on other grounds); [“… [W]e are not bound by the decisions of the lower federal courts even on federal questions.”].)” (Reply p. 3.)

 

Here, the Court notes that Defendant’s argument that Felisilda is controlling and binding and that the Court should not apply the federal law of Ngo, is unavailing. First, as this ruling will further explain, Plaintiffs distinguished Felisilda from the instant facts. Therefore, even to the degree that Felisilda is binding, Felisilda is not on point to apply it to the instant set of facts. Further, to the extent that Ngo is or is not binding, the Court still found Plaintiffs’ arguments more convincing than Defendant’s.

 

Distinguishing Felisilda
Defendant heavily relies on Felisilda to compel arbitration by the Defendant, a nonsignatory, because Felisilda had a similar arbitration provision and Felisilda compelled arbitration of a nonsignatory to the sales contract. While Defendant is correct to note that here the causes of action against Defendant do concern the condition of the subject vehicle, Plaintiffs accurately distinguished Felisilda because in Felisilda the plaintiffs sued a dealership and the manufacturer. Here, Plaintiffs only sued the manufacturer. Further, in Felisilda, the motion to compel arbitration was brought by the seller-dealer/signer of the arbitration agreement with the motion seeking to include the manufacturer. (Felisilda, supra, 53 Cal.App.5th at 498.) Here, moving Defendant was not named the seller-dealer in the RISC. Further here, Seller-Dealer is not even a named party in the action.

 

Intimately Founded In/Intertwined
Defendants argue that the RISC underlies Plaintiffs’ claims in this action and the remedies Plaintiffs seek are directly related to and intertwined with the RISC.

 

While the arbitration provision here is similar to Felisilda¸and while the causes of action against Defendant do concern the condition of the subject vehicle, the Court does not find Defendant’s arguments convincing.

 

As noted in the Opposition, Plaintiffs’ Complaint doesn’t even reference, let alone rely on the RISC. Plaintiffs note how they are not trying to enforce any of the terms of their financing agreement against Defendant. Plaintiffs explain how their claims seek to enforce Defendant’s statutory obligations under the Song-Beverly Act. The Court finds Plaintiffs’ arguments convincing.

 

Further, Defendant argues that the Plaintiffs’ claims are inextricably intertwined with the RISC because it furnishes them with standing under the Song-Beverly Act. In moving papers, Defendant states, “To have standing to bring a Song-Beverly Warranty Act claim, a consumer must buy or lease “a new motor vehicle from a person (including an entity) engaged in the business of manufacturing, distributing, selling, or leasing new motor vehicles at retail.” (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 926.)” (Def. Mot. p. 13.) The Court finds Defendant’s argument unavailing because the Defendant’s own quote states nothing about how the standing arises from the contract with the Seller-Dealer as the Defendant implies. Plaintiffs’ standing to pursue Song-Beverly claims here arises from the fact that they bought and now own the subject vehicle, whether pursuant to the RISC or not.

 

As stated in Ngo, “Lastly, BMW’s standing argument fails. It is the retail sale – the fact that Ngo bought a BMW – not the purchase agreement, that gives a plaintiff standing to bring claims under the Song-Beverly Act…Because Ngo’s standing to bring these claims against BMW does not derive from the purchase agreement, BMW cannot establish that Ngo’s claims are “inextricably tied up” with the purchase agreement.” (Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942, 950.) Further, “As an initial matter, under California law, warranties from a manufacturer that is not a party to a sales contract are ‘not part of [the] contract of sale.” (Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942, 949 citing Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Cavanaugh (1963) 217 Cal.App.2d 492, 514.)

 

Here, Plaintiffs’ Complaint is not based on the RISC, as the Complaint does not reference the RISC as its basis for its action.

 

Defendant also appears to be arguing that the claims Plaintiffs are suing on are inextricably intertwined with the RISC because the express warranty that Plaintiffs are suing on is an additional term of the RISC that imposes obligations on Defendant, and Plaintiffs allege a violation of those obligations. Plaintiffs argue that the RISC does not impose upon Defendant any obligation to comply with its warranty. Plaintiffs argue that the obligation is separate from the RISC between Plaintiffs and Glendale. Further, Plaintiffs argue that the RSIC does not and could not require Defendant to provide a warranty because Defendant is not a party to the agreement, and the agreement expressly disclaims any effect on any warranty a manufacturer may choose to offer.

 

The Court finds Plaintiffs’ argument more convincing than Defendant’s. As stated in Ngo, “Like Ngo's purchase agreement, the contracts in Kramer “expressly differentiate[d] dealer warranties from manufacturer warranties” and disclaimed any effect on the manufacturer's warranties. Id. We held that warranty claims against the manufacturer “arise[ ] independently from the Purchase Agreements, rather than intimately relying on them.” Id.” (Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942, 950.)

 

Here, Paragraph 4 of the RISC states:

 

WARRANTIES SELLER DISCLAIMS

If you do not get a written warranty, and the Seller does not enter into a service contract within 90 days from the date of this contract, the Seller makes no warranties, express or implied, on the vehicle, and there will be no implied warranties of merchantability or of fitness for a particular purpose.

 

This provision does not affect any warranties covering the vehicle that the vehicle manufacturer may provide. If the Seller has sold you a certified used vehicle, the warranty of merchantability is not disclaimed.

 

(Mejia Decl. Ex. C-8, ¶4.)

 

As to this issue in Reply, Defendant states:

 

Further, Plaintiffs argue that the Sales Contract differentiates Nissan’s warranties from those of the dealer. However, the “Warranties Seller Disclaims” provision of the Sales Contract expressly provides that it “does not affect any warranties covering the vehicle that the vehicle manufacturer may provide.” (Sales Contract, p. 5, section 4 (emphasis added).) There are no other warranties that accompanied the sale of the Subject Vehicle—only Nissan’s warranties. Also, Plaintiffs’ argument detracts from the simple facts of the case: Plaintiffs executed and entered into the Sales Contract, and consequently agreed to the Arbitration Provision therein.

 

(Reply p. 8.)

 

As to Defendant’s argument in Reply on this issue, the Court has no idea what argument Defendant is trying to make.

 

Defendant’s argument that  the claims are inextricably intertwined with the RISC because the express warranty that Plaintiffs are suing on is an additional term of the RISC that imposes obligations on Defendant is unavailing.

Third Parties
Defendant also brings up a third-party argument in its argument on Equitable Estoppel. Defendant argues, “Because the Arbitration Provision contemplates claims against third-parties and Plaintiffs expressly agreed to arbitrate all claims arising out of the purchase and condition of their vehicle (as alleged in the Complaint), even against nonsignatories, they cannot now avoid arbitration.” (Def. Mot. p.13.)

 

As previously mentioned, the Arbitration Agreement in relevant part states:

 

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.

 

(Mejia Decl. Ex. C-10, [Emph. added.].)

 

As a preliminary matter, the Court is uncertain as to why Defendant is bringing up the third-party argument within its Equitable Estoppel argument.

 

Further, as indicated in the emphasized language cited above in the Arbitration Provision, “you” or “we” and “your” or  “our” can elect/choose to arbitrate. Nothing provides that a third-party can elect to arbitrate.

 

Both Ways
Defendant argues that Plaintiffs cannot have it both ways: they cannot, on the one hand seek to hold Nissan liable under the Song-Beverly for the warranties that accompanied the Sales Contract but, on the other hand, deny the valid and enforceable Arbitration Provision.

 

However, Defendant’s argument misstates the principal it is trying to assert.

 

In Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, in which the court of appeal reversed an order denying a motion to compel arbitration, observing with respect to equitable estoppel in such a context:

 

“Equitable estoppel precludes a party from asserting rights 'he otherwise would have had against another' when his own conduct renders assertion of those rights contrary to equity." (Schwabedissen, supra, 206 F.3d at pp. 417–418.) In the arbitration context, a party who has not signed a contract containing an arbitration clause may nonetheless be compelled to arbitrate when he seeks enforcement of other provisions of the same contract that benefit him. (Id. at p. 418; NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 81 [100 Cal. Rptr. 2d 683] (NORCAL).)

 

 

(Metalclad, at 1713.)

 

Here, it does not appear that Plaintiffs are “trying to have it both ways.” The Complaint does not seek to enforce any term of the sale contract with the dealership against anyone, and does not make any reference to that sale contract or include a copy in the connection with the Complaint.  These claims are brought against Defendant for violation of the Song-Beverly Act under the warranty issued by Defendant when the vehicle was sold to the dealer.

 

Equitable Estoppel Conclusion
Therefore, this Court does not find that the claims in the Complaint against Defendant are intimately founded in or intertwined with the RISC to support equitable estoppel.

 

Third Party Beneficiary Doctrine
Defendant also seeks to compel arbitration on the theory that it is a third-party beneficiary of the RISC.

 

The California Supreme Court has set forth the following test for determining if a party may be recognized as a third-party beneficiary:

 

Instead, a review of this court's third party beneficiary decisions reveals that our court has carefully examined the express provisions of the contract at issue, as well as all of the relevant circumstances under which the contract was agreed to, in order to determine not only (1) whether the third party would in fact benefit from the contract, but also (2) whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and (3) whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties. All three elements must be satisfied to permit the third party action to go forward.

 

(Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 829-830.)

 

Defendant argues as follows:

 

Here, the intent to benefit Nissan is apparent from the plain language of the Sales Contract. Plaintiffs agreed to arbitrate any claim related to the Sales Contract, including “[a]ny claim or dispute . . . which arises out of or relates to . . . any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract).” (Mejia Decl., Ex. C Sales Contract, pg. 7 (emphasis added).) Plaintiffs’ purchase of the vehicle, memorialized by the Sales Contract, created a resulting warranty relationship between Nissan and Plaintiffs. Because the Arbitration Provision explicitly embraces the type of claims Plaintiffs asserts against Nissan—which encompass claims arising out of relationships with third parties who do not sign the Sales Contract— Plaintiffs’ warranty claims necessarily require them to contend that Nissan benefitted from the Sales Contract. Thus, permitting Nissan to enforce the Arbitration Provision is consistent with the objectives of the Sales Contract and the reasonable expectations of Plaintiff and the selling dealership.

 

(Def. Mot. p. 15.)

 

The Court does not find Defendant’s argument availing. “All three elements must be satisfied to permit the third party action to go forward.” (Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 830.) Here, the Defendant only addresses one of the three elements. Additionally, it isn’t entirely clear which one of the three elements that Defendant is addressing. To the extent that it appears to the Court that Defendant is attempting to address the second element of Goonewardene – whether a motivating purpose of the contracting parties was to provide a benefit to the third party – the Court did not find Defendant’s argument availing.

 

As stated in Ngo when addressing the second element:

 

Unlike agreements to draft wills or to manage trusts or mutual funds—arrangements inherently formed with third parties in mind—the vehicle purchase agreement in question was drafted with the primary purpose of securing benefits for the contracting parties themselves. In such an agreement, the purchaser seeks to buy a car, and the dealership and assignees seek to profit by selling and financing the car. Third parties are not purposeful beneficiaries of such an undertaking.

 

The text of the arbitration clause supports this conclusion. It provides that claims and disputes “which arise[ ] out of or relate[ ] 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.” (emphasis added). Though the language allows for arbitration of certain claims concerning third parties, it still gives only Ngo, the dealership, and the assignee the power to compel arbitration. Nothing in the clause or, for that matter, in the purchase agreement reflects any intention to benefit BMW by allowing it to take advantage of the arbitration provision.

 

(Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942, 947-948.)

 

Here, contrary to Defendant’s position, a fair reading of the RISC and the Arbitration Provision does not support the seller-dealer or Plaintiffs intended Defendant to benefit from the contract.

 

Third-Party Beneficiary Conclusion

Defendant has not shown it is a third-party beneficiary to the Arbitration Provision nor to the RISC.

 

 

 

 

Question of Arbitrability is for the Arbitrator

 

Defendant’s argument here presumes that it has shown that a valid arbitration agreement exists between the parties to this case.  Defendant has failed to so show.

 

 

TENTATIVE RULING
Defendant’s motion to compel arbitration and stay proceedings is DENIED.

REQUEST FOR JUDICIAL NOTICE
Defendant requested Judicial Notice of:

1.      Complaint for Damages, filed in Los Angeles County Superior Court by Plaintiffs Argina H. Grigoryan and Odet Yerouman, on September 30, 2022, in the matter of Argina H. Grigoryan, et al. v. Nissan North America, Inc. (Case No. 22GDCV00650), a true and correct copy of which is attached to this request as Exhibit A.

 

2.      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. Felisida, et al. v. FCA US LLC, et al. (34-2015-00183668), a true and correct copy of which is attached to this request as Exhibit B.

 

Defendant states, “The item requested to be noticed attached to this request as Exhibit A is relevant to the underlying motion in that it demonstrates the relationship between the claims at issue and the arbitration provision that it is the subject of this motion. The item requested to be noticed attached to this request as Exhibit B is relevant to the underlying motion in that it demonstrates the controlling nature of Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 over this motion.”

The Court, in its discretion, grants Judicial Notice as to Exhibit A, but denies Judicial Notice as to Exhibit B.