Judge: George F. Bird, Jr., Case: 22CMCV00233, Date: 2023-03-30 Tentative Ruling

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Case Number: 22CMCV00233    Hearing Date: March 30, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

            Plaintiff Maria Garcia (“Plaintiff”) filed the Complaint in this action on July 22, 2022. Plaintiff alleges she purchased a new 2018 Nissan Altima (the “Vehicle”) on July 22, 2018. (Complaint (“Compl.”), ¶ 8.) Plaintiff alleges that she received an express written warranty in which Nissan North America, Inc. (“Defendant”) undertook to preserve or maintain the utility or performance of the Vehicle or provide compensation for failures. (Compl., ¶ 9.) Plaintiff alleges that the Vehicle had a defective continuously variable transmissions (“CVT”) that is not in conformity with the warranty provided. (Compl., ¶ 11.) Plaintiff alleges that Defendant was aware of the CVT defect by October 2012, if not earlier, and Defendant concealed the existence of the defect. (Compl., ¶¶ 15, 19.) Plaintiff now brings three causes of action against Defendant for (1) violation of the Song-Beverly Consumer Warranty Act, (2) fraudulent inducement – intentional misrepresentation, and (3) fraudulent inducement – concealment. Plaintiff also brings a cause of action for negligent repair against Nissan of Torrance only, the selling dealership. 

II.       MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

A.    Motion filed on October 11, 2022.

            Defendant filed this Motion to Compel Arbitration and Stay Proceedings (“Motion”) alleging that Defendant may enforce the arbitration provision found in the Retail Installment Sale Contract (the “Sale Contract”) Plaintiff signed when she purchased the Vehicle. Defendant argues they can enforce the arbitration provision on either a theory of equitable estoppel or as a third-party beneficiary.

B.     Opposition filed on March 17, 2023.

            Plaintiff argues that the Sale Contract between Plaintiff and Nissan of Torrance cannot be enforced by Defendant because the Sale Contract is both procedurally and substantively unconscionable. If the Sale Contract is valid, Plaintiff argues that Defendant cannot use the doctrine of equitable estoppel to enforce the arbitration provision of the Sale Contract because the standard to invoke the doctrine of equitable estoppel is not satisfied and, if the court does apply the standard of equitable estoppel from Felisilda v. FCA US LLC, (2020) 53 Cal.App.5th 486 (hereinafter “Felisilda”), the claims do not arise from or relate to the obligations in the Sale Contract.

C.     Reply filed on March 22, 2023.

            Defendant first argues that Plaintiff cannot satisfy their burden to demonstrate both procedural and substantive unconscionability. Next, Defendant argues that state law applies to determine the scope and enforceability of the arbitration agreement, thus Felisilda is binding authority on this Court. Defendant argues that Felisilda allows a nonsignatory manufacturer to enforce an arbitration agreement against parties to a Sale Contract of a vehicle on a theory of equitable estoppel. Defendant also advances the theory that they can enforce the Sale Contract arbitration provision as a third-party beneficiary.

III.       LEGAL STANDARDS

            A written arbitration agreement is “valid, enforceable and irrevocable” unless grounds for revocation of any contract exist. (Code Civ. Proc., § 1281.) The court shall order the parties to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists unless grounds exist for rescission of the agreement. (Code Civ. Proc., § 1281.2, subd. (b).) If the court orders arbitration, the court shall stay the action or proceeding. (Code Civ. Proc., § 1281.4.)

            If the parties specifically contract to designate that the FAA controls the arbitration agreement, then the FAA governs rather than state procedural law. (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1115.) Under Section 2 of the FAA, written arbitration agreements are valid, irrevocable, and enforceable “save upon such grounds as exist at law or in equity for the revocation of a contract.” (Arthur Andersen LLP v. Carlisle (2009) 556 U.S. 624, 629–630; Bickel v. Sunrise Assisted Living (2012) 206 Cal.App.4th 1, 8.) If the court compels arbitration, Section 3 of the FAA "requires the court, ‘on application of one of the parties,’ to stay the action if it involves an ‘issue referable to arbitration under an agreement in writing.’ 9 U.S.C. § 3.” (Arthur Andersen LLP v. Carlisle, supra., 556 U.S. at p.  630.)

 However, state law is applicable to determine which contracts are binding under Section 2 and enforceable under Section 3. (Id. at pp. 630-631.)

IV.       REQUEST FOR JUDICIAL NOTICE

            Defendant requests that this Court take judicial notice of three documents: (1) The Complaint in this action; (2) The Answer filed by Defendant in this action; and (3) A Notice of Entry of Dismissal and Proof of Service, filed in Sacramento County 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).

            Under Evidence Code section 452, subdivision (d), the court may take judicial notice of records of any court of this state. This Court will take judicial notice of all three documents. This Court will not take judicial notice of the facts alleged in document (1), the Complaint, or document (2), the Answer, as the facts asserted are reasonably subject to dispute.

V.          EVIDENTIARY OBJECTIONS

            Plaintiff objects to the Declaration of Rodrigo E. Salas, counsel for Defendant, who attempts to present “a true and correct copy of what I am informed and believe is the Retail Installment Sale Contract-Simple Finance Charge (With Arbitration Provision).” (Decl. Rodrigo E. Salas, ¶ 7.) This Court SUSTAINS the objection. While Rodrigo E. Salas lacks the knowledge to provide a proper foundation for the evidence, Plaintiff directly cites to the Retail Installment Sale Contract presented in the declaration of Rodrigo E. Salas and Plaintiff relies on the authenticity of the agreement presented for their arguments. (See Opposition p. 2:1-8, 11:18-22, 12:10-17, 13:5-10.) Because both parties rely on the evidence provided by Rodrigo E. Salas, the Court will treat this as a stipulation by the parties that the Retail Installment Sale Contract presented as Exhibit 4 in the declaration of Rodrigo E. Salas is a true and correct copy of the Sale Contract at issue here.

            Defendant objects to the Declaration of Zachary Powell, counsel for Plaintiff, who attempts to present “true and correct copies of invoices with arbitration fees charged to the consumer in other actions….” (Decl. of Zachary Powell, ¶ 5.) The objection is SUSTAINED.

VI.       DISCUSSION

A.    Applicable law.

            Though the arbitration provision of the Sale Contract states that any arbitration under the agreement will be governed by the Federal Arbitration Act (“FAA”), state law still governs the enforceability and scope of the Sale Contract and arbitration provision. (Decl. Rodrigo E. Salas, Exhibit 4, p. 7.)
            When the Supreme Court of the United States analyzed how the FAA provisions impacted the applicability of state law, the Supreme Court of the United States determined “Neither provision purports to alter background principles of state contract law regarding the scope of agreements (including the question of who is bound by them). Indeed § 2 explicitly retains an external body of law governing revocation (such grounds ‘as exist at law or in equity’). And we think § 3 adds no substantive restriction to § 2's enforceability mandate. ‘[S]tate law,’ therefore, is applicable to determine which contracts are binding under § 2 and enforceable under § 3 ‘if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.’” (Arthur Andersen LLP v. Carlisle supra., 556 U.S. at p. 631.)

            This Court will apply state law to determine the enforceability of this Sale Contract.

B.     Unconscionability.

            “Courts may refuse to enforce unconscionable contracts and this doctrine applies to arbitration agreements. [Citation.]” (Salgado v. Carrows Restaurants, Inc. (2019) 33 Cal.App.5th 356, 362 [244 Cal.Rptr.3d 849, 853, 33 Cal.App.5th 356, 362], as modified (Mar. 25, 2019).) The decision of unconscionability is left to the court, not an arbitrator. (Bickel v. Sunrise Assisted Living, supra, 206 Cal.App.4th at p. 8.) To find an agreement unconscionable, the court must find both procedural and substantive unconscionability. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910 [190 Cal.Rptr.3d 812, 820, 353 P.3d 741, 748] (hereinafter “Sanchez”).) Though both types of unconscionability must be present, they do not need to be present in equal amounts. The Supreme Court of California expressed that procedural and substantive unconscionability work as a sliding scale, so “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 [99 Cal.Rptr.2d 745, 767, 6 P.3d 669, 690].)

            Procedural unconscionability focuses on the oppression or surprise due to unequal bargaining power between the parties generally demonstrated by a contract of adhesion which is “imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. [Citations.]” (Internal quotations omitted.) (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1280-81 [16 Cal.Rptr.3d 296, 305].)

            Plaintiff argues that the Sale Contract is procedurally unconscionable because it is a contract of adhesion. In Sanchez, the Supreme Court of California reviewed a motion to compel arbitration by a car dealer against car buyers based on an arbitration provision in a sale contract. (Sanchez v. Valencia Holding Co., LLC, supra, 61 Cal.4th at p. 906.) The plaintiffs argued that the sale contract was unconscionable as it was a contract of adhesion. (Id. at 915.) While the Supreme Court of California agreed that the adhesive nature of the sale contract established some degree of unconscionability, “a finding of procedural unconscionability does not mean that a contract will not be enforced.” (Internal quotations omitted.) (Ibid.)

            Here, Plaintiff argues that the Sale Contract was one of adhesion and presented on a ‘take it or leave it basis.’ As noted in Sanchez, the dealership is under no obligation to highlight or explain to buyers the arbitration clause in the Sale Contract. (Id. at 914.) The arbitration provision is on its own page within the agreement and outlined in a separate box. (Decl. Rodrigo E. Salas, Exhibit 4, p. 7.) There are no allegations or evidence that Plaintiff was pressured, rushed, or denied the ability to negotiate the terms of the Sale Contract. The procedural unconscionability due to the adhesive nature of the Sale Contract is low.

            Because the level of procedural unconscionability is low, Plaintiff must demonstrate a higher degree of substantive unconscionability to support a finding that the Sale Contract is unconscionable. Substantive unconscionability determines if the terms of the agreement are so one-sided as to “shock the conscience.” (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1330 [83 Cal.Rptr.2d 348].)

            Plaintiff argues that the Agreement is substantively unconscionable because it requires each party to pay their own attorney, expert, and other fees while the Song-Beverly Warranty Act requires that costs and fees be awarded to a prevailing plaintiff. The arbitration provision states, “Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law.” (Decl. Rodrigo E. Salas, Exhibit 4, p. 7.) As Plaintiff brings claims under the Song-Beverly Warranty Act, thus if the Song-Beverly Warranty Act calls for an award of costs, the Agreement allows for the arbitrator to enforce the applicable provision.

            Plaintiff also argues that the Sale Contract terms are unfairly one-sided because the arbitration provision has a fee shifting clause that burdens Plaintiff. The arbitration provision states, “We will pay your filing, administration, service or case management fee and your arbitrator or hearing fee all up to a maximum of $5,000, unless the law or the rules of the chosen arbitration organization require us to pay more.” (Decl. Rodrigo E. Salas, Exhibit 4, p. 7.)

            In Sanchez, the Supreme Court of California concluded “an ability-to-pay approach is appropriate in the context of consumer arbitration agreements.” (Sanchez v. Valencia Holding Co., LLC, supra, 61 Cal.4th at p. 920.) The analysis of fee shifting should be analyzed on a case-by-case basis to determine if the fees are so unreasonably high as to limit access to the arbitration remedy. (Ibid.) The provision cannot be deemed unconscionable “absent a showing that appellate fees and costs in fact would be unaffordable or would have a substantial deterrent effect.” (Ibid.)

            Here, Defendant will cover costs up to $5,000.00 and Plaintiff argues that these costs are routinely exceeded in private arbitrations. The inquiry is not if Plaintiff will have to bear costs over the $5,000.00, but if Plaintiff has the ability to pay the costs. Plaintiff has not demonstrated that she would be unable to pay the arbitration costs over the $5,000.00 that Defendant has agreed to pay. Plaintiff has not demonstrated that any of the terms of the Sale Contract are substantively unconscionable.

            Without some finding of substantive unconscionability, the Sale Contract cannot be deemed unconscionable. (Sanchez v. Valencia Holding Co., LLC, supra, 61 Cal.4th at p. 910.)

C.     Compelling arbitration

            Plaintiff does not contest that she signed the Sale Contract with Nissan of Torrance which contains the arbitration provision at issue here. Plaintiff argues that Defendant was not a party to the Sale Contract and therefore cannot compel Plaintiff to arbitrate her claims.

            Defendant argues that they may enforce the arbitration provision of the Sale Contract through the doctrine of equitable estoppel. “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.’” (Felisilda v. FCA US LLC, supra, 53 Cal.App.5th at p. 495.)

            Plaintiff argues that the traditional standard of equitable estoppel should be applied to this matter and not the arbitration-specific test for equitable estoppel developed by California case law. Plaintiff argues that in Morgan v. Sundance, Inc. (2022) 212 L.Ed.2d 753, the Supreme Court of the United States instructed that arbitration clauses should be subject to the same standards that apply to other contracts and not special rules that support the policy favoring arbitration. In Morgan, The Supreme Court made clear that they intended to address a very narrow issue.

“We decide today a single issue, responsive to the predominant analysis in the Courts of Appeals, rather than to all the arguments the parties have raised. In their briefing, the parties have disagreed about the role state law might play in resolving when a party's litigation conduct results in the loss of a contractual right to arbitrate. The parties have also quarreled about whether to understand that inquiry as involving rules of waiver, forfeiture, estoppel, laches, or procedural timeliness. We do not address those issues. The Courts of Appeals, including the Eighth Circuit, have generally resolved cases like this one as a matter of federal law, using the terminology of waiver. For today, we assume without deciding they are right to do so. We consider only the next step in their reasoning: that they may create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA's “policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). They cannot. For that reason, the Eighth Circuit was wrong to condition a waiver of the right to arbitrate on a showing of prejudice.” (Morgan v. Sundance, Inc. (2022) 212 L.Ed.2d 753 [142 S.Ct. 1708, 1712–1713].)

            The holding in Morgan addresses the federal courts’ ability to create variants of federal procedural rules based on a policy favoring arbitration. The Supreme Court has also clarified that state law, not federal law, is applicable to determine the scope of the arbitration agreement “(including the question of who is bound by them)” even when an arbitration agreement is governed by the FAA. (Arthur Andersen LLP v. Carlisle, supra, 556 U.S. at p. 630.) The holding of Morgan does not impact the standard for equitable estoppel in Felisilda. “In determining whether the plaintiffs’ claim is founded on or intimately connected with the sales contract, we examine the facts of the operative complaint.” (Felisilda v. FCA US LLC, supra, 53 Cal.App.5th at p. 496.)

            The Complaint here alleges causes of action under the Song-Beverly Consumer Warranty Act and fraud related to misrepresentations about the CVT system in the Vehicle. Plaintiff specifies that the “cause(s) of action for violations of the Song-Beverly Act arise from warranty obligations of NISSAN in connection with a vehicle purchased by Plaintiff and for which NISSAN issued written warranties.” (Compl., ¶ 5.) Plaintiff argues that the warranty which is allegedly breached by Defendant failing to repair or replace the Vehicle is not an obligation in the Sale Contract, but a separate warranty and obligation independent of the Sale Contract.

            In Felisilda, the warranties at issue “accompanied the sale of the vehicle” in which the manufacturer undertook to preserve the utility of the vehicle or provide compensation if there was a failure. (Felisilda v. FCA US LLC, supra., 53 Cal.App.5th at p. 496.) Based on these facts, the Court of Appeal determined “Thus, the sales contract was the source of the warranties at the heart of this case.” (Ibid.) The Court of Appeal recognized that the warranties received were “a consequence of the sale contract.” (Id. at 497.) The definition of an express warranty is “A written statement arising out of a sale to the consumer of a consumer good…” which further demonstrates that an express warranty arises out of a sale. (Civil Code § 1791.2, subd. (a)(1).)

            Here, as in Felisilda, the Sale Contract is the ultimate source of the warranty provided by Defendant. The warranty is not provided but for the Sale Contract. Defendant points out that Plaintiff seeks to have the Sale Contract rescinded which demonstrates that the Sale Contract and the claims made by Plaintiff are intertwined. (Compl., Prayer ¶ 2.) The claims for violation of the warranty are sufficiently founded on and arise out of the obligations in the Sale Contract.

            Additionally, Plaintiff agreed to arbitrate,

“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)….” (Decl. Rodrigo E. Salas, Exhibit 4, p. 7.)

            Plaintiff’s claims under the Song-Beverly Consumer Warranty Act relate to the condition of the CVT system on the Vehicle, and Plaintiff has agreed to arbitrate claims related to the condition of the Vehicle. Plaintiff’s claims under the Song-Beverly Consumer Warranty Act are subject to the arbitration provision.

            Plaintiff’s Complaint states that the “fraud related causes of action arise out of the facts that surround the misrepresentations and concealment of material facts at the time Plaintiff purchased a new motor vehicle. The transaction which resulted from misrepresentations and concealment of material facts occurred in Carson, County of Los Angeles, California.” (Compl., ¶ 4.) Plaintiff purchased the Vehicle at issue through the Sale Contract and the misrepresentations at issue relate to the CVT defect. Plaintiff alleges that the misrepresentations induced her to purchase the Subject Vehicle. (Compl., ¶ 122.) Such disputes are sufficiently intertwined with the Sale Contract to subject these claims to the arbitration provision.

            Plaintiff argues that actual reliance on the terms of the agreement is required to meet the standard for equitable estoppel, and Plaintiff’s claims do not actually rely on any term in the Sale Contract. Plaintiff quotes from Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209 to support this contention. Upon reviewing Goldman, the true holding of the Court of Appeal is “allegations of interdependent and concerted misconduct by signatories and nonsignatories will justify allowing a nonsignatory to enforce an arbitration clause only, as the Roberson court put it, when the claims against the nonsignatory are “inextricably bound up with the terms and duties of the contract the plaintiff has signed with the other defendant. [Citation.]” (Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 225 [92 Cal.Rptr.3d 534, 546].) This standard parallels the standard for equitable estoppel under Felisilda that the claims must be intimately founded in and intertwined with the underlying obligations of the contract. (Felisilda v. FCA US LLC, supra, 53 Cal.App.5th at p. 495.) As the standard in Felisilda is the most recent California Court of Appeals decision cited regarding the standard for compelling arbitration by a nonsignatory defendant, this Court will rely on the Felisilda standard.

            Felisilda also considered and rejected federal authority cited by Plaintiff. Notably, Plaintiff relies on Ngo v. BMW of N. Am., LLC, (9th Cir. 2022) 23 F.4th 942, which disagrees with the state court’s interpretation and concluded that equitable estoppel did not apply since the manufacturer’s warranties arose “independently from the Purchase Agreements, rather than intimately relying on them.” (Ngo v. BMW of N. Am., LLC, (9th Cir. 2022) 23 F.4th 942, 950.) Given that Felisilda is a California appellate court opinion that interprets an arbitration provision with identical language as the Sale Contract here, it is binding authority. This Court will not rely on persuasive federal authority when binding state authority correctly addresses the present issue.

            The reliance by Plaintiff on  Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1122 is also not persuasive to this Court. First, Kramer is only persuasive federal authority and cannot overcome the binding authority of Felisilda. Second, Felisilda explicitly rejects reliance on the reasoning used in Kramer because “The retail sales contracts in Kramer did not contain any language that could be construed as extending the scope of arbitration to third parties.” (Felisilda v. FCA US LLC, supra, 53 Cal.App.5th at p. 497.) The language of the arbitration provision here and the language of the provisions in Felisilda are identical, thus this Court is further affirmed in the reliance on the analysis and reasoning of Felisilda.

            Plaintiff attempts to distinguish from Felisilda by arguing that both the dealership and the manufacturer were compelled to arbitrate in Felisilda while here, Plaintiff has only brought these causes of action against the manufacturer, not the dealer. Again, Plaintiff relies on  Ngo v. BMW of N. Am., LLC, (9th Cir. 2022) 23 F.4th 942. This Court has already determined that Felisilda is binding authority and that conflicting interpretation under Ngo will not be relied upon.

            Defendant spends significant pages in the Reply distinguishing this action from Hernandez v. Meridian Management Services, LLC (2023) 87 Cal.App.5th 1214. In Hernandez, an employee of a non-party entity signed an arbitration agreement with the non-party entity, but the employee did not sign an arbitration agreement with six other entities that occupied the same building as the non-party entity. (Hernandez v. Meridian Management Services, LLC (2023) 87 Cal.App.5th 1214, 1217 [304 Cal.Rptr.3d 402, 404, 87 Cal.App.5th 1214, 1217].) The employee performed work for the six other entities. (Ibid.) When the employee was terminated, the employee brought causes of action against the six entities, but not the non-party entity with whom the employee signed the arbitration agreement. (Ibid.) The six entities attempted to enforce the arbitration agreement the employee had with the non-party. The trial court denied enforcing the arbitration agreement.

            The Court of Appeal’s decision provides no guidance on an equitable estoppel theory as the conclusion simply states, “They give us no basis for disturbing the trial court ruling here….” (Id. at 1220.) Similarly the Court of Appeal’s decision provides no guidance on a third-party beneficiary theory by simply concluding “The Other Firms stumble on step two. Nothing shows Intelex and Hernandez sought to benefit the Other Firms. They argue the agreement's reference to ‘agents’ of Intelex shows they were beneficiaries. This merely recapitulates their fruitless effort to establish agency.” (Id. at 1222.) Such conclusions do not provide any analysis or reasoning that this Court can adopt or rely upon.

            Plaintiff also argues that the Sale Contract expressly disclaims any effect on a manufacturer’s warranty by a provision stating, “This provision does not affect any warranties covering the vehicle that the vehicle manufacturer may provide.” (Decl. Rodrigo E. Salas, Exhibit 4, p. 5.) The quoted provision follows a term which disclaims warranties by the Seller under certain conditions. (Ibid.) The disclaimer explicitly does not affect the warranties covering the vehicle that the manufacturer may provide. This provision specifically contemplates that the vehicle manufacturer may provide warranties to a purchaser and the disclaimer in the Sale Contract explicitly does not apply to those warranties. The Court finds that this provision further demonstrates that the Sale Contract contemplates manufacturer warranties and that the Sale Contract and the manufacturer warranties are so intertwined that the seller felt it necessary to inform the purchaser that the disclaimer did not apply to the manufacturer warranties.

            Based on the foregoing, Defendant may compel arbitration on a theory of equitable estoppel.

D.    Third-Party beneficiary.

            Because Defendant may compel arbitration on a theory of equitable estoppel, this Court need not continue to analyze Defendant’s third-party beneficiary theory for compelling arbitration.

E.     Pending Court of Appeal hearing.

            Plaintiff requests that this Court take this matter under submission because the California Second District Court of Appeal will be conducting a hearing on March 30, 2023, in the matter of Martha Ochoa et al. v. Ford Motor Company, B312261, which allegedly will address the issues raised in this motion as well as the applicability of Felisilda. While this Court understands Plaintiff’s desire to promote judicial economy, this Court finds that economy is best served by considering the case law and precedent currently available and not waiting on an anticipated Court of Appeal hearing which may or may not impact the analysis of this matter. If a decision is made that Plaintiff believes impacts the analysis here, Plaintiff may follow the procedures for reconsideration.

            The Court will not take this matter under submission at this time.

VII.    CONCLUSION

            The Court rules as follows:

            This Motion to Compel Arbitration and Stay Proceedings is GRANTED. The action is stayed pursuant to 9 U.S.C. § 3 of the FAA. The court sets an OSC Re: Status of Arbitration for ____________________ at 8:30 a.m. in Department B of the Compton Courthouse.

Moving party to give notice.

Dated: March 30, 2023                                               __________________________________

                                                                                                Judge of the Superior Court