Judge: Malcolm Mackey, Case: 22STCV15255, Date: 2023-05-02 Tentative Ruling

Case Number: 22STCV15255    Hearing Date: May 2, 2023    Dept: 55

SOSA v. NISSAN NORTH AMERICA, INC.                               22STCV15255

Hearing Date:  5/2/23,  Dept. 55

#7:   PETITION TO COMPEL ARBITRATION PURSUANT TO CODE OF CIVIL PROCEDURE §1281.2.

Notice:  Okay

Opposition

MP:  Plaintiff

RP:  Defendant

Summary

On 5/6/21, Plaintiff OMAR SOSA filed a Lemon Law Complaint alleging that he purchased a new 2019 Nissan Altima having defects, including the gas pedal shaking and the car hesitating when accelerating.

On 1/9/23, the Court ordered arbitration compelled.

MP Positions

Moving party requests an order appointing arbitrators other than with the AAA, and requiring Defendant to timely pay arbitration fees, on grounds including the following:

• "Ma gives Plaintiff the choice of arbitration forums and not a mandate to AAA or of arbitrator of Defendant's choosing.
• The parties met and conferred regarding arbitrator selection, but Nissan refuses to allow other arbitration forums that other car manufacturers are allowing.
• Experience has showed that AAA is biased against consumers. For instance, as to AAA arbitrations, the consumer is identified as the "prevailing party" just 7.23 percent of the time.  Barry Decl., ¶ 12.

RP Positions

Opposing party advocates denying, or, in the alternative, appointing New Era ADR pursuant to the motion, for reasons including the following:

First, the contract provides that the parties will use the American Arbitration Association (“AAA”) or another arbitration forum chosen by Plaintiff and approved by Nissan. Because the parties are still engaged in this arbitrator-selection process, Plaintiff’s motion is premature.

Second, the contract gives both parties a right to insist on arbitration before the AAA. It does not give Plaintiff a right to refuse AAA arbitration and impose his preferred forum. Contrary to Plaintiff’s briefing, this framework does not unreasonably favor Nissan.

Third, Nissan has valid, good-faith reasons to prefer the AAA. The AAA is not-for-profit and employs fair and efficient procedures. The AAA allows parties to purchase a list of potential arbitrators and Nissan offered to purchase this list for both parties. Plaintiff has offered no reasonable basis to conclude AAA arbitrators would not be impartial.

(Opp., p. 1.)

Tentative Ruling

The motion compelling arbitration on this matter was granted January 9, 2023.  The Motion to Compel defendant to select any other arbitration forum other than AAA as requested in this motion is denied.  

The subject arbitration provision is clearly worded to allow Plaintiff the option to choose the AAA, but any other choice must be agreed upon by Defendant.  The phrase before the comma saying Plaintiff “may” choose AAA is unqualified, but after the comma the option to select other arbitrators, is expressly subject to Defendant’s approval.  However, Defendant has not approved other arbitrators that Plaintiff advocates.  “When … no conflicting extrinsic evidence is introduced to aid the interpretation of an agreement to arbitrate, the Court of Appeal reviews de novo a trial court's ruling on a petition to compel arbitration. California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4^th 198, 204.

Even arbitration provisions requiring only one arbitration forum, are very commonly enforced, and not considered illegal or oppressive.  Parties can agree to arbitration provider rules.  E.g.,  Cruise v. Kroger Co. (2015) 233 Cal. App. 4th 390, 399 – 400.

Disqualification issues are not considered before arbitration in the abstract, but instead based upon factual realities as to any motion to vacate or correct an arbitration award.  E.g.,  Allstate Ins. Co. v. Sup. Ct. (2006) 142 Cal.App.4^th 356, 362-63 (citing, e.g., CCP §1286.2). 

Further, the time for raising unconscionability issues already expired on 1/9/23, when the Court decided the motion to compel, and then rejected the unconscionability arguments Plaintiff raised.

Because AAA has arbitration selection rules, and Plaintiff nominated no arbitrator, there is not a motion properly before the Court involving arbitrator selection.  See, e.g.,  CCP § 1281.6.

*IF BOTH PARTIES SUBMIT ON THE COURT’S TENTATIVE RULING, PLEASE CALL THE COURTROOM AT 213-633-0655*