Judge Douglas W. Stern, Case 22STCV10618 2022-10-25 Tentative Ruling

Judge: Douglas W. Stern, Case: 22STCV10618, Date: 2022-10-25 Tentative Ruling

Case Number: 22STCV10618 Hearing Date: October 25, 2022 Dept: 68

Saldivar v. Nissan North America, Inc., Case No. 22STCV10618

Tentative Ruling:

Plaintiffs Petition to Compel Arbitration, etc.

On August 3, 2002, this Court granted the Defendant’s Motion to Compel Arbitration. This is a follow-up to that motion. Plaintiff has filed what is labeled a “Petition to Compel Arbitration pursuant to California Code of Civil Procedure §1281.2.” The dispute appears to be quite simple. It is simply about who shall be the arbitrator.

“If the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed. If the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.” Code Civ. Proc., § 1281.6

The arbitration agreement states:

“Any claim or dispute to be arbitrated by a single arbitrator on an individual basis and not as a class action. You expressly waive the right you may have to arbitrate a class action. You may choose the American Arbitration Association, 1633 Broadway, 10^th floor, New York, NY 10019 (www.adr.org), or any other organization to conduct the arbitration subject to our approval.” (Bold added.)

Plaintiff contends that this provision does not mandate any specific arbitrator be chosen. Instead it allows the Plaintiff to choose the American Arbitration Association, which Nissan has preapproved in the agreement. Any other arbitrator may be proposed by Plaintiff, but must be acceptable to Nissan as well. Defendant contends that “unless the parties otherwise agreed, arbitration would commence before the AAA. Because [Defendant] has the express contractual right to insist on an AAA arbitration, and because the AAA is generally superior to the alternatives Mr. [sic] Saldivar suggests, Nissan respectfully requests this Court deny her Petition to Compel Arbitration and instead enter an order compelling her to arbitrate before the AAA as required by the Arbitration Provision.” (Opposition pg. 2:5-10.)

However, the Agreement does not state what Defendant claims. It does not require Plaintiff to choose AAA.

““May” is not the same as “must.” (Mijares v. Orange County Employees’ Retirement System (2019) 32 Cal.App.5th 316, 329, 243 Cal.Rptr.3d 728 [“‘Courts routinely construe the word “may” as permissive and words like “shall” or “must” as mandatory.’ ”]; Jones v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 307, 54 Cal.Rptr.3d 148 [same].)” Howitson v. Evans Hotels, LLC (2022) 81 Cal.App.5th 475, 493 [297 Cal.Rptr.3d 181, 196, 81 Cal.App.5th 475, 493]. (Bold added.)

The agreement simply does not say what Defendants suggests. It could easily have stated that the arbitrator shall be AAA unless the parties mutually agree to an alternative arbitrator. But it did not. It gave Plaintiff a choice. It was drafted by Nissan. The Court concludes that while Plaintiff could have chosen AAA and Nissan would have been contractually bound to accept that choice, Plaintiff is not obligated to select AAA. Further, while the agreement allows the parties to agree upon any other mutually agreeable arbitrator, they have not been able to reach such an agreement. Therefore, the method of selecting an arbitrator is mandated by Code of Civil Procedure § 1281.6

“When a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought may within five days of receipt of notice of the nominees from the court jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties fail to select an arbitrator within the five-day period, the court shall appoint the arbitrator from the nominees.” Code Civ. Proc., § 1281.6

The Court GRANTS the Petition to Appoint an Arbitrator - C.C.P. § 1281.6.

Unless the parties stipulate that the Court may select the arbitration company (such as AAA or JAMS or Judicate West, or ADR, as opposed to following the method set forth in C.C.P. § 1281.6) the Court shall grant the Motion and obtain a list of 5 persons as mandated by the statute. The Court suggests that the parties should stipulate to allow the Court to simply identify the arbitration company that it selects and then the parties shall follow the procedure of the particular company to select the individual arbitrator.