Judge: Mark E. Windham, Case: 22STLC04737, Date: 2022-12-13 Tentative Ruling

Case Number: 22STLC04737    Hearing Date: December 13, 2022    Dept: 26

Griffin v. HN Elite Motors, et al.

MOTION TO
COMPEL ARBITRATION AND STAY PROCEEDINGS

(CCP §§ 1281.2, et
seq., 638)

TENTATIVE RULING:

Plaintiff Aaron S. Griffin’s Motion to Compel Arbitration is Motion to Compel Arbitration is DENIED.

ORDER TO SHOW CAUSE
RE ENTRY OF DEFAULT AS TO DEFENDANTS MAS FINANCIAL SERVICES, INC. AND WESTERN
SURETY COMPANY IS SET FOR FEBRAURY 14, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE
SPRING STREET COURTHOUSE.

ANALYSIS:

On July 18, 2022, Plaintiff Aaron S. Griffin (“Plaintiff”)
filed this action against Defendants HN
Elite Motors dba Luxe Motors (“Defendant HN Elite”), MAS Financial Services,
Inc (“Defendant MAS”) and Western Surety Company (“Defendant Western”).
Defendant MAS was personally served on September 13, 2022. (Proof of Personal
Service, filed 10/12/22, ¶5.) Defendant HN Elite was sub-served effective September
23, 2022. (Proof of Substitute Service, filed 10/12/22, ¶5.) Defendant Western
was personally served on October 31, 2022. (Proof of Personal Service, filed
11/07/22, ¶5.) Only Defendant HN Elite has filed a responsive pleading.

Plaintiffs filed the
instant Motion to Compel Arbitration on August 12, 2022. No opposition has been
filed to date.

Discussion

The Motion is brought pursuant to Code of Civil Procedure section
1281.2, which provides in relevant part:

On petition of a party to an arbitration
agreement alleging the existence of a written agreement to arbitrate a
controversy and that a party thereto refuses to arbitrate such controversy, the
court shall order the petitioner and the respondent to arbitrate the
controversy if it determines that an agreement to arbitrate the controversy
exists, unless it determines that:

(a) The right to compel arbitration has been
waived by the petitioner; or

(b) Grounds exist for the revocation of the
agreement.

(c) A party to the arbitration agreement is
also a party to a pending court action or special proceeding with a third
party, arising out of the same transaction or series of related transactions
and there is a possibility of conflicting rulings on a common issue of law or
fact. . . .

(Code Civ. Proc., § 1281.2, subds. (a)-(c).) The Motion demonstrates the
existence of an arbitration agreement pursuant to the Retail Installment Sales Contract
(“RISC”) between Plaintiff and Defendant HN Elite. (Motion, Sadr Decl., Exh. 1,
pp. 1-5.) The Court finds an enforceable arbitration agreement exists between
Plaintiff and Defendant HN Elite. Nor has Defendant HN Elite filed an
opposition to the Motion demonstrating waiver of the right to arbitrate or
grounds to revoke the arbitration agreement.

Regarding Defendant MAS, no evidence is submitted to demonstrate that it
is subject to the arbitration provision as the Holder of the RISC. (See Motion,
p. 1:8.)  The Motion cites only to an allegation
in the unverified Complaint that the RISC was assigned to Defendant MAS. (Id.
at p. 1:18-19.) An allegation in an unverified pleading is not adequate
evidence to support the Motion. (See Thomson v. Anderson (2003) 113
Cal.App.4th 258, 271.) In fact, Plaintiff own Notice of Violation indicates
that the holder of the RISC is “Lobel Financial Corporation.” (Motion, Sadr
Decl., Exh. 2.) Finally, the Court also notes that Defendant MAS has been
served but not filed a responsive pleading to the Complaint. Plaintiff is now
required to enter default against Defendant MAS. (Cal. Rules of Court, rule
3.110(g) [“If a responsive pleading is not served within the time limits
specified in this rule and no extension of time has been granted, the plaintiff
must file a request for entry of default within 10 days after the time for
service has elapsed.”].)

Under subdivision (c) of Code of Civil Procedure section 1281.2, the
Court may deny a request to compel arbitration if there is a pending action
between a party to the arbitration agreement and a nonsignatory, and there is a
risk of conflicting ruling on common issues of fact or law. Here, Defendant MAS
or Western are nonsignatories to the arbitration agreement in a pending action
with Plaintiff and Defendant HN Elite, thereby creating a risk of conflicting
rulings in this action and the arbitration proceeding.

Conclusion

Therefore, Plaintiff Aaron S. Griffin’s Motion to Compel Arbitration is
DENIED.

ORDER TO SHOW CAUSE RE ENTRY OF DEFAULT AS TO DEFENDANTS MAS FINANCIAL
SERVICES, INC. AND WESTERN SURETY COMPANY IS SET FOR FEBRAURY 14, 2023 AT 9:30
AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.