Judge: Margaret L. Oldendorf, Case: 22GDCV00063, Date: 2023-02-27 Tentative Ruling

Case Number: 22GDCV00063    Hearing Date: February 27, 2023    Dept: P

       SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

GARY ADAMSON, an individual,

 

                                            Plaintiff,

vs.

 

NISSAN NORTH AMERICA, INC., a corporation, and DOES 1 to 10, inclusive,

 

                                            Defendants.

 

)

)

)

)

)

)

)

)

)

)

)

)

)
)

)

)

)

)

)

Case No.: 22GDV00063

 

 

[TENTATIVE] ORDER DENYING MOTION TO APPOINT ARBITRATOR

 

Date:   February 27, 2023

Time:  8:30 a.m.

Dept.:  P

 

            I.         INTRODUCTION

            In this action, Plaintiff Gary Adamson (Adamson) sues Defendant Nissan North America (NNA) for violation of the Song-Beverly Act. NNA responded with a motion to compel arbitration, which was granted in July 2023. Adamson now moves for an order appointing an arbitrator, arguing that the parties are unable to agree on one. However, because the arbitration provision provides a method for selecting an arbitrator (or arbitration organization), Code Civ. Proc. §1281.6 is not implicated. The motion must be  denied.

 

II.        LEGAL STANDARD

            Code Civ. Proc. §1281.6 provides:

“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.

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.”

 

III.      ANALYSIS

            The first sentence of Section 1281.6 mandates that if the agreement provides for a method of appointing an arbitrator, that method shall be followed. The threshold question is whether the agreement provides for a method of appointment. Here, the arbitration agreement at issue is contained in a Retail Installment Sales Contract. That contract defines “you” as the Buyer, and indicates that person is Gary Adamson. It defines “we” or “us” as the Seller-Creditor, in this case Glendale Nissan. In interpreting the contract, Adamson and Glendale Nissan must be read into the contract wherever it contains the words “you,” “we,” or “us” appear.

            The pertinent arbitration provision is as follows:

            “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 court action. If federal law provides that a claim or dispute is not subject to binding arbitration, this Arbitration Provision shall not apply to such claim or dispute. Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a class action. You may choose the American Arbitration Association, 1633 Broadway, 10th Floor, New York, New York 10019) (www.adr.org) or any other organization to conduct the arbitration subject to our approval. You may get a copy of the rules of an arbitration organization by contacting the organization or visiting its website.”

            By its terms, this arbitration agreement requires use of the AAA organization or another, if approved by the Seller-Creditor. Adamson urges that the issue here is not selection of a particular arbitrator but of an arbitration organization. No legal authority is cited for applying Section 1281.6 in this manner. But even if the Court were to consider stretching it in the manner Adamson suggests, the motion must fail.

            The crucial sentence is this: “You may choose the American Arbitration Association, 1633 Broadway, 10th Floor, New York, New York 10019) (www.adr.org) or any other organization to conduct the arbitration subject to our approval.” Plugging in the defined names, the sentence reads, “Adamson may choose [AAA] or any other organization to conduct the arbitration subject to Glendale Nissan’s approval.”

            A straightforward interpretation of the contract leads to the conclusion that Glendale Nissan’s approval is needed for any choice Adamson makes other than AAA. Missing is any evidence as to Glendale Nissan’s approval or lack of approval. But even if there were such evidence it would not demonstrate that the arbitration provision fails to provide a method for selecting an arbitrator. It does contain a provision for selecting an arbitrator (or an arbitration organization). The method is AAA or any other organization Adamson chooses and Glendale Nissan approves.

 

IV.      CONCLUSION

            The motion for appointment of an arbitrator is denied.

            Nissan North America is ordered to give notice of this ruling.

           

 

 

Dated:                                                                        _______________________________

                                                                                          MARGARET L. OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT