Judge: Maurice A. Leiter, Case: 20STCV40223, Date: 2023-01-24 Tentative Ruling

Case Number: 20STCV40223    Hearing Date: January 24, 2023    Dept: 54

Hearing Date: January 24, 2023

Department 54, Judge Maurice A. Leiter

Motion to Compel Arbitration

Moving Party: Defendant Hyundai Motor America

Responding Party: Plaintiffs Marcelo Olivas and Rosalinda Olivas

T/R:    DEFENDANT’S MOTION TO COMPEL ARBITRATION IS DENIED.

DEFENDANT TO NOTICE.  

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            This is a lemon law action arising out of Plaintiffs’ purchase of a 2013 Hyundai Accent, manufactured and distributed by Defendant Hyundai Motor America. Plaintiffs filed the complaint on October 20, 2020, asserting causes of action for violations of the Song-Beverly Act.

ANALYSIS

“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 a 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….”  (CCP § 1281.2.)  The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.   (CCP § 1281.2(a)-(c).)  “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.”  (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

A. Existence of Arbitration Agreement

            Defendant moves to compel arbitration based on the arbitration provision in the Retail Installment Sale Contract (“RISC”) executed by Plaintiffs on July 25, 2017. (Decl. Ameripour, Exh. 2.) The agreement provides, in pertinent part, “[a]ny claim or dispute, whether in contract, tort, statute or otherwise ..., between you and us or our employees, agents, successors or assigns, which arises out of or relates to your... 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 a court action.” (Id.) This action arises out the purchase and condition of the subject vehicle. Defendant, however, is not a signatory to the agreement.

B. Non-Signatory

            Defendant moves to compel arbitration under the doctrine of equitable estoppel, relying on Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 489. In Felisilda, the plaintiffs purchased a vehicle and signed a sales contract, which provided in pertinent part, “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 ... 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 a court action.” (Id. at 490, emphasis in original.)

The plaintiffs sued FCA; the dealership moved to compel all parties to arbitration based on the sales agreement. The plaintiffs argued that they could not be compelled to arbitrate their claims against non-signatory FCA. The Court of Appeal rejected this argument, finding that FCA could compel arbitration under equitable estoppel, which allows a non-signatory to enforce an arbitration agreement when “the causes of action against the non-signatory are ‘intimately founded in and intertwined’ with the underlying contract obligations.” (Id. at 495; quoting JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1236-1237.) Citing the arbitration provisions above, the Court explained, “[t]he Felisildas’ claim against FCA directly relates to the condition of the vehicle that they allege to have violated warranties they received as a consequence of the sales contract. Because the Felisildas expressly agreed to arbitrate claims arising out of the condition of the vehicle – even against third party nonsignatories to the sales contract – they are estopped from refusing to arbitrate their claim against FCA.” (Id. at 497.)

The arbitration agreement executed by Plaintiffs is not materially different from the one in Felisilda. Plaintiffs assert the Court should instead follow the 9th Circuit Court case Ngo v. BMW of N. Am., LLC, No. 20-56027, 2022 WL 109004 (9th Cir. Jan. 12, 2022). Federal cases are not binding on this Court and the Court does not find Ngo persuasive. The reasoning in Felisilda for upholding the equitable estoppel finding was that the buyers’ claims related to the condition of the subject vehicle and the buyers expressly agreed to arbitrate their claims arising out of the condition of the subject vehicle, including those against third party non-signatories to the sales contract. That reasoning is present here.

C. Enforceability

Plaintiffs argue the agreement is not enforceable because Defendant has waived the right to compel arbitration. “[T]here is no ‘single test’ for establishing waiver, ‘the relevant factors include whether the party seeking arbitration (1) has 'previously taken steps inconsistent with an intent to invoke arbitration,' (2) 'has unreasonably delayed' in seeking arbitration, (3) or has acted in 'bad faith' or with 'wilful [sic] misconduct.’” (Christensen v. Dewor Developments (1993) 33 Cal.3d 778, 782, citing Keating v. Superior Court (1982) 31 Cal.3d 584, 605.)

Plaintiffs assert Defendant has taken numerous steps inconsistent with the intent to arbitrate, including filing an answer, requesting a trial date, indicating it would not seek arbitration in the case management statement, conducting discovery, filing discovery motions, demanding information on Plaintiff’s expert witnesses. Plaintiffs also emphasize that Defendant has waited two years and one month before the original trial date to compel arbitration. In reply, Defendant argues it did not waive its right to arbitration because it did not file a counterclaim, because the trial date has been vacated, and because Plaintiffs cannot show prejudice.

Defendant has waived the right to arbitrate. Defendant did not indicate a desire to arbitrate until almost two years after the complaint was filed and one month before the trial date. This is unreasonable delay. Additionally, Defendant’s filings in this case, such as the case management statement and discovery motion, are inconsistent with the intent to arbitrate.

Defendant’s motion to compel arbitration is DENIED.