Judge: Maurice A. Leiter, Case: 22STCV15324, Date: 2023-03-14 Tentative Ruling

Case Number: 22STCV15324    Hearing Date: March 14, 2023    Dept: 54

Hearing Date: March 14, 2023

Department 54, Judge Maurice A. Leiter

Motion to Appoint Arbitrator

Moving Party: Plaintiff Carlos Medina

Responding Party: Defendant Nissan North America, Inc.

T/R:    PLAINTIFF’S MOTION IS GRANTED.

THE PARTIES ARE ORDERED TO MEET AND CONFER IN GOOD FAITH ON A MUTUALLY AGREEABLE ARBITRATOR. IF THE PARTIES CANNOT AGREE, THE COURT WILL APPOINT ONE.

PLAINTIFF 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 Plaintiff’s purchase of a 2017 Nissan Rogue, manufactured and distributed by Defendant Nissan North America, Inc. Plaintiffs filed the complaint on May 9, 2022, asserting causes of action for violations of the Song-Beverly Act.

            On October 27, 2022, the Court granted Defendant’s motion to compel arbitration.

ANALYSIS

CCP § 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.”

Plaintiff moves for an order appointing an arbitrator. The arbitration agreement states, “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 the 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."

Plaintiff asserts Defendant refuses to consider any organizations other than AAA for arbitration. Plaintiff argues that under the agreement, the choice of arbitrator lies with Plaintiff and Plaintiff may choose an arbitrator other than AAA. In opposition, Defendant asserts that the agreement requires the parties use AAA unless Defendant agrees otherwise.

The plain language of the agreement allows the buyer to choose the arbitrator. The buyer “may” choose AAA or they “may” choose another organization subject to Defendant’s approval. “May” is permissive, not mandatory. Nothing in this language requires the parties use AAA. That Defendant can approve a different organization does not provide Defendant with ultimate authority over the choice of arbitrator. It merely requires the parties agree on the organization – a standard condition in countless arbitration agreements. Under the covenant of good faith and fair dealing, Defendant must consider arbitral forums other than AAA.

Plaintiff’s motion is GRANTED. The parties are ordered to meet and confer in good faith on a mutually agreeable arbitrator. If the parties are unable to agree, each side shall submit by March 31, 2023 the names, affiliations, and resumes of two proposed arbitrators, and a declaration from counsel stating they have agreed to serve in this case. The Court then will appoint an arbitrator.