Judge: Nick A. Dourbetas, Case: 2020-01175802, Date: 2022-08-26 Tentative Ruling

Motion to Compel Arbitration

Defendant Nissan North America, Inc.’s (defendant or Nissan) motion to compel arbitration is DENIED.

“Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413; accord, Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 (Engalla).)

Defendant has failed to meet this burden. As an initial matter, defendant has not produced a copy of the subject arbitration agreement purporting to bear plaintiff Cari Ramirez’s (plaintiff) signature. (See Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543 (Bannister) [party seeking arbitration can meet its initial burden by attaching a copy of the arbitration agreement purporting to bear the plaintiff’s signature].) Defendant has produced only the signed front side of a retail installment sales contract (RISC) that indicates that, “pursuant to the Arbitration Provision” on the reverse side, “you [i.e., plaintiff] or we [i.e., the nonparty dealer] may elect to resolve any dispute by neutral, binding arbitration and not by a court action.” (Maugeri Decl. ¶¶ 4-5, Ex. 3.) The front side of the RISC does not set forth the terms of the actual arbitration agreement that plaintiff purportedly agreed to. (See id. at Ex. 3.) No copy, much less a signed copy, of the actual arbitration provision/agreement that plaintiff purportedly agreed to and signed has been provided. Instead, defendant’s attorney declares that he is “informed and believe[s]” that the arbitration provision that plaintiff agreed to is the same as the arbitration provision that appears on the reverse side of a certain standard sales contract form used by independent Nissan dealers, which he is “informed and believe[s] that Plaintiff signed....” (Id. ¶¶ 7-8, Ex. 4.) This is akin to seeking an order requiring plaintiff to arbitrate her claims based on defense counsel’s belief that plaintiff might have signed an arbitration provision with a third party, the terms of which he is not sure, but speculates were probably the same as the arbitration provision that appears in other standard form sales contracts used by nonparty Nissan dealers. This is insufficient to constitute prima facie evidence of an agreement to arbitrate the controversy.

Furthermore, where, as here, plaintiff has challenged the authenticity of the agreement, it is defendant’s burden to provide admissible evidence of its existence. (See Bannister, supra, 64 Cal.App.5th at p. 544; Chambers v. Crown Asset Management, LLC (2021) 71 Cal.App.5th 583, 590 & fn. 1 [it is the moving party who “ha[s] the burden of establishing through admissible evidence that [the opposing party] has agreed to arbitrate the dispute,” and if the moving party does not meet this burden, it makes no difference that the opposing party has not provided any contrary evidence on the existence of an arbitration agreement]; see also id., at pp. 592-593 [rejecting assertion that the rules of evidence are “relaxed” in connection with a motion to compel arbitration].) 

Defendant has failed to provide any admissible evidence of the subject arbitration agreement and has therefore failed to meet this burden.

Defendant’s request for judicial notice is GRANTED as to exhibit 1, and DENIED as to exhibit 2. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [denying request where judicial notice is neither necessary nor helpful].)

Plaintiff’s objection to the declaration of Nicholas S. Maugeri II is SUSTAINED.

Defendant shall give notice.