Judge: Margaret L. Oldendorf, Case: 22AHCV00508, Date: 2023-04-03 Tentative Ruling
Case Number: 22AHCV00508 Hearing Date: April 3, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
This is a lemon law case against manufacturer Nissan
North America, Inc. Plaintiffs allege defects to their 2021 Nissan Rogue.
Specifically, they allege the vehicle was equipped with a continuously variable
transmission (CVT) that was defective, and which Nissan knew to be defective
but concealed from consumers.
Nissan seeks an order compelling Plaintiffs to arbitrate
their claims. The motion fails, however, as Nissan has not presented admissible
evidence of a written agreement between the parties containing an arbitration
provision.
II. LEGAL
STANDARD
A.
Standard Concerning Motions To Compel Arbitration Generally
Nissan’s
motion is made pursuant to the Federal Arbitration Act. Notice of Motion at 2:3-4.
Nissan seeks an order compelling Plaintiffs to arbitrate and to stay this
litigation. The FAA provides for both.
Written
arbitration clauses in contracts evidencing a transaction involving commerce
are valid, irrevocable, and enforceable, except where grounds exist at law or
in equity for revocation of any contract. 9 U.S.C. §2. This provision reflects
a liberal policy favoring arbitration, and the principle that arbitration is a
matter of contract. AT&T Mobility,
LLC v. Concepcion (2011) 563 U.S. 333, 339.
Where
a party refuses to arbitrate pursuant to the terms of a written agreement, a
party aggrieved thereby may petition the court for an order “directing that
such arbitration proceed in the manner provided for in such agreement.” 9
U.S.C. §4.
9
U.S.C. §3 provides for a stay of litigation when a matter is referred to
arbitration.
In
its memorandum of points and authorities, Nissan also relies on Code Civ. Proc.
§1281.2 and §1281.4, which contain similar provisions. Memorandum at 5:6-20.
B.
Standard Governing Moving Party’s Burden
California
Rules of Court, rule 3.1330 contains this requirement governing arbitration
motions:
“A
petition to compel arbitration or to stay proceedings pursuant to Code of Civil
Procedure sections 1281.2 and 1281.4 must state, in addition to other required
allegations, the provisions of the written agreement and the paragraph that
provides for arbitration. The provisions must be stated verbatim or a copy must
be physically or electronically attached to the petition and incorporated by
reference.”
In Rosenthal v. Great Western Fin.
Securities Corp. (1996) 14 Cal.4th 394, the California Supreme Court explained that when
a petition to compel arbitration is “filed and accompanied by prima facie
evidence of a written agreement to arbitrate the controversy, the court
itself determines whether the agreement exists and, if any defense to its
enforcement is raised, whether it is enforceable. Because the existence of the
agreement is a statutory prerequisite to granting the petition, the
petitioner bears the burden of proving its existence by a preponderance of
the evidence.” Id. at 413, bolding added.
III. ANALYSIS
In support of its motion, Nissan offers the declaration
of its attorney, Rodrigo E. Salas. He attaches Exhibit 4 to his declaration,
and states on information and belief that it is a copy of the Retail
Installment Sales Contract evidencing Plaintiffs’ purchase of the subject vehicle.
Plaintiffs object to this evidence on the following grounds:
a.
Hearsay. (Evid. Code §§ 1200, et seq.)
b.
Authentication (Evid. Code § 1400)
c.
Foundation; lacks personal knowledge. (Evid. Code §§ 403, 702.)
d.
Speculative and Prejudicial. (Evid. Code §§ 310, 350, 352, 702; People v.
Morrison
(2004) 34 Cal.4th 698, 711 [evidence is “irrelevant” if it leads only to
speculative inferences].)
Objections (b) and (c) are
sustained. The Salas Declaration does not contain any information providing a
basis for him to authenticate this document.
In response to the objections Nissan
filed a document captioned, “Response to Evidentiary Objections,” which is in
essence a sur-reply containing legal argument. There, as well as in its moving
brief, Nissan cites Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th
215, 218 in support of the argument that, for purposes of an arbitration motion,
“it is not necessary to follow the normal procedures of document authentication.”
While the Court acknowledges that Condee contains the cited
language, it not compelled to follow it if it conflicts with binding authority,
which it does.
“Thus, our Supreme Court has clearly
stated that a court, before granting a petition to compel arbitration, must determine the factual
issue of ‘the existence or validity of the arbitration agreement.’ (Rosenthal, supra, 14 Cal.4th at pp. 402,
414, 58 Cal.Rptr.2d 875, 926 P.2d 1061.) In this way, a court’s role, though
limited, is critical. ‘There is indeed a strong policy in favor of enforcing
agreements to arbitrate, but there is no policy compelling persons to accept
arbitration of controversies which they have not agreed to arbitrate and which
no statute has made arbitrable.’ (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473,
481, 121 Cal.Rptr. 477, 535 P.2d 341.)” Toal v. Tardiff (2009) 178 Cal.App.4th 1208,
1219-1220, italics in original.
The existence of a written agreement
is the threshold factual issue a trial court must resolve on a motion to compel
arbitration. It is the moving party’s burden to establish the existence of such
a document. Here, Nissan has failed to carry its evidentiary burden.
Consequently, the motion must be denied.
IV. CONCLUSION
AND ORDER
Defendant Nissan’s motion to compel arbitration is denied
for failure to establish the existence of a written agreement to arbitrate.
Plaintiff is ordered to give notice of this ruling.
Dated:
____________ ___________________________________
MARGARET L. OLDENDORF
JUDGE OF THE SUPERIOR COURT