Judge: Maurice A. Leiter, Case: 22STCV07398, Date: 2023-04-14 Tentative Ruling

Case Number: 22STCV07398    Hearing Date: April 14, 2023    Dept: 54

Hearing Date: April 14, 2023

Department 54, Judge Maurice A. Leiter

Motion to Compel Arbitration

Moving Party: Defendant Nissan North America, Inc.

Responding Party: Plaintiff Octavio Correa Lopez

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 and opposition.

BACKGROUND

            This is a lemon law action arising out of Plaintiff’s purchase of a 2019 Nissan Sentra manufactured and distributed by Defendant Nissan North America, Inc.

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 Plaintiff September 2, 2019. (Decl. Wilner, Exh. 5.) Defendant asserts 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.”

            As pointed out in opposition, Defendant has failed to include in their filing the page of the contract which contains the arbitration agreement. Plaintiff asserts this error establishes Defendant has not met its burden to show the existence of an agreement to arbitrate. The Court agrees.

            Even if the agreement had been filed, it cannot be enforced by Defendant under the Second District Court of Appeal opinion in Ford Motor Warranty Cases 2023 WL 2768484.

            Defendant’s motion is DENIED.