Judge Ralph C. Hofer, Case 22GDCV00338 2023-03-03 Tentative Ruling

Plaintiff Corina M. Guzman alleges that in April of 2018 plaintiff purchased a new 2018 Hyundai Kona, and that express warranties accompanied the sale of the vehicle to plaintiff by which defendant Hyundai Motor America (Hyundai Motor) undertook to preserve or maintain the utility or performance of plaintiff’s vehicle or to provide compensation if there was a failure in such utility or performance.

The complaint alleges that the defects and nonconformities manifested themselves in the vehicle within the applicable express warranty period, and that plaintiff delivered the vehicle to an authorized Hyundai repair facility for repair of the nonconformities, but defendant has been unable to conform plaintiff’s vehicle to the applicable express warranty after a reasonable number of repair attempts. Plaintiff alleges that notwithstanding plaintiff’s entitlement, defendant has failed to either promptly replace the vehicle or to promptly make restitution in accordance with the Song-Beverly Act.

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that 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:

There is a strong public policy in favor of arbitration of disputes and any doubts concerning the scope of arbitrable disputes should be resolved in favor of arbitration. Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (“courts will ‘indulge every intendment to give effect to such proceedings.’”) (quotation omitted). See also AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333, 339.

In this case, defendant Hyundai Motor has submitted a copy of what defendant represents to be a Retail Installment Sale Contract between Russell Westbrook Hyundai, as seller, and Corina M. Guzman as buyer. [Ameripour Decl., paras. 4, Ex. 2]. This Agreement includes an Arbitration Provision following paragraph 8. [Ex. 2]. Russell Westbrook Hyundai, the dealer who sold the vehicle to plaintiff, has not been named as a party to this action.

As an initial matter, the court notes that the title of the document relied upon is cut off in the copy submitted to the court, and it is not clear that the document is in fact a Retail Installment Sale Contract. [See Ex. 2]. The court also notes that the document is not authenticated by a witness with personal knowledge concerning the authenticity of the document, but by defendant’s attorney, who at best testifies that the document is in the legal file of the law firm representing defendant in this matter. [Ameripour Decl., paras. 2, 4]. This is insufficient to establish by personal knowledge that the document is an agreement entered into by plaintiff.

However, the court also notes that plaintiff in opposition to the motion does not challenge the authenticity of the document, or object to the court considering it, but submits and relies upon a copy of a document which appears to be the same document, and which plaintiff also refers to as the Retail Installment Sale Contract. [Jacobson Decl., para. 22, Ex. 20]. Under the circumstances, the court will find that the parties agree that the document attached as Exhibit 20 to the Jacobson Declaration, and as Exhibit 2 to the Ameripour Declaration is a sale contract plaintiff executed in purchasing the vehicle.

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 your credit application, purchase or condition of this vehicle, this contact or any resulting transaction or relationship (including any such relationship with third parties who do not sign this lease) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action.”

Defendant argues that an obligation to arbitrate does not attach only to those who have actually signed the agreement to arbitrate, but that in certain circumstances a non-signatory can compel a signatory to arbitrate, including as a third-party beneficiary and under an alternative estoppel theory.

With respect to the argument that defendant is a third party- beneficiary of the contract between plaintiff and the dealership seller, Russell Westbrook Hyundai, defendant argues that it qualifies as a third party beneficiary pursuant to the plain language of the contract, which includes a reference to any “claim or dispute…which arises out of or relates to” Plaintiff’s “purchase or condition of this vehicle,” or “any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract)….” [Ex. 2, p. 4].

‘[A] review of this court's third party beneficiary decisions reveals that our court has carefully examined the express provisions of the contract at issue, as well as all of the relevant circumstances under which the contract was agreed to, in order to determine not only (1) whether the third party would in fact benefit from the contract, but also (2) whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and (3) whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties. All three elements must be satisfied to permit the third party action to go forward.”

Defendant here argues that considering the language above, and reading the contract as a whole, defendant Hyundai Motor falls within the class of persons or entities for whom the arbitration provision was intended, given that the claims against defendant arose out of and relate to the condition of the vehicle and the resulting warranty relationship that arose out of the execution of the contract. Defendant argues that plaintiff’s claims necessarily rely on the condition of the vehicle and defendants alleged liability for the defects within the vehicle.

Defendant does not address the elements of whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties.

Plaintiff argues that defendant Hyundai Motor fails to establish each of the elements, as the language of the contract demonstrates that the clause does not benefit defendant at all, let alone show that the parties had a motivating purpose of conveying a benefit to invoke third party status. Plaintiff argues that the contract expressly and repeatedly states that only two parties may compel arbitration, “you,” defined as “the Buyer (and Co-buyer, if any)” and “we” or “us,” defined as the “Seller-Creditor,” or Russell Westbrook Hyundai, the dealership from which plaintiff purchased the vehicle and obtained financing. [See Ex. 2, pp. 1, 4]. Plaintiff argues that by limiting the parties who could enforce the arbitration clause to plaintiff and Russell Westbrook Hyundai, the arbitration provision demonstrates an intent not to benefit defendant, or anyone else falling outside the sale contract’s definitions of “you” and “we.”

Plaintiff also argues that it cannot be established that permitting defendant manufacturer to enforce the clause would be consistent with the objectives of the contract, and not violate the reasonable expectations of the contracting parties. Plaintiff argues that here the objective of the contract was to finance plaintiff’s vehicle purchase, and the objective of the arbitration clause specifically was to enable, “you” and “us,” plaintiff and Russell Westbrook Hyundai, to choose to arbitrate disputes. Plaintiff argues that allowing defendant Hyundai Motors to take advantage of the arbitration provision would not effectuate either of these objectives.

Plaintiff also argues that this is especially true here because the manufacturer’s warranty contains its own dispute resolution provisions, so that plaintiff would not have reasonably expected that defendant would nevertheless be able to take advantage of the arbitration provision in her agreement with her car dealership. However, plaintiff has not submitted to the court the manufacturer’s warranty, which is also not attached to the operative complaint, so it cannot be confirmed that the warranty contains its own dispute resolution provisions.

In any case, the argument remains that the purchase of the vehicle from an entirely separate party, when the contractual language expressly limits those who can choose to arbitrate to the seller and the buyer, does not satisfy the elements required to invoke third party beneficiary status.

It would also appear that the contract on its face limits arbitrable disputes to those “between you and us or our employees, agents, successor or assigns,” when defendant has not submitted any argument or evidence establishing how defendant has any of these relationships to the dealer Russell Westbrook Hyundai. Defendant Hyundai Motor submits no factual showing establishing, for example, that Hyundai Motor has any particular relationship with the seller, Russell Westbrook, which would establish that Hyundai Motor would fall within the expressly delineated parties with which a dispute may be arbitrated. There is no evidence offered that defendant Hyundai Motor enjoys such a relationship with the dealership seller defined as “us” in the sale contract, or any evidence whatsoever on this point. To the extent Hyundai Motor were to in fact submit evidence showing that it is, for example, the parent company of the dealership, this is the type of relationship not included in “employees, agents, successor or assigns,” and which could have been expressly included if intended, and the lack of the term “parent companies,” appears to indicate an intent not to include such parent companies, which would have been a party known to the parties at the time the contract was entered into.

Plaintiff relies on Ngo v. BMW of North America, LLC (USDC., 9th Cir. 2022) 23 F.4th 942, in which the Ninth Circuit reversed the district court’s granting of a manufacturer’s motion to compel arbitration based on an arbitration provision very similar to the form contract provision at issue here. With respect to the argument that the manufacturer in that case was an intended third party beneficiary, the Ninth Circuit found that defendant manufacturer had failed to establish any of the required elements to demonstrate it was a third party beneficiary.

The Ninth Circuit concluded that the manufacturer had failed to establish in that case that it was a third party which in fact benefitted from the contract, setting forth the “you” and “we” designations in that case from the same form used here, and noting that in that case, the arbitration provision through this language expressly provided that only three parties, plaintiff, the dealership, and, in that case, the assignee, could compel arbitration, and that arbitrable disputes were limited to the dealership’s employees, agents, successors, or assigns, which did not include BMW. The Ninth Circuit reasoned:

“That BMW could, at some point down the line, receive some benefit if the arbitration clause were read to extend to the manufacturer is of no moment: incidental or secondary benefit is not sufficient. See Lucas, 56 Cal. 2d at 590, 15 Cal.Rptr. 821, 364 P.2d 685. The clause is pellucid that only three parties may compel arbitration, none of which is BMW. Language limiting the right to compel arbitration to a specific buyer and a specific dealership (and its assignees) means that extraneous third parties may not compel arbitration. See Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1128 (9th Cir. 2013) (finding similar language to evince the buyer's intent to arbitrate with the expressly named parties and no one else); see also Safley v. BMW of N. Am., LLC, No. 20-cv-00366-BAS-MDD, 2021 WL 409722, at *5–6 (S.D. Cal. Feb. 5, 2021); Qi Ling Guan v. BMW of N. Am., LLC, No. 20-cv-05025-MMC, 2021 WL 148202, at *2 (N.D. Cal. Jan. 15, 2021); Manuwal v. BMW of N. Am., LLC, No. CV 20-2331 DSF, 484 F. Supp. 3d 862, 868 (C.D. Cal. 2020). Any benefit that BMW might receive from the clause is peripheral and indirect because it is predicated on the decisions of others to arbitrate. BMW therefore fails to meet the first prong of the Goonewardene test.

The Ninth Circuit in Ngo also found that BMW had failed to establish that the contracting parties had the “motivating purpose” of providing a benefit to the manufacturer such as had been recognized in case law in cases involving agreements to draft wills or manage trusts or mutual funds, “arrangements inherently formed with third parties in mind.” The court reasoned that, in contrast:

“the vehicle purchase agreement in question was drafted with the primary purpose of securing benefits for the contracting parties themselves. In such an agreement, the purchaser seeks to buy a car, and the dealership and assignees seek to profit by selling and financing the car. Third parties are not purposeful beneficiaries of such an undertaking.

The text of the arbitration clause supports this conclusion. It provides that claims and disputes “which arise[ ] out of or relate[ ] to your credit application, 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.” (emphasis added). Though the language allows for arbitration of certain claims concerning third parties, it still gives only Ngo, the dealership, and the assignee the power to compel arbitration. Nothing in the clause or, for that matter, in the purchase agreement reflects any intention to benefit BMW by allowing it to take advantage of the arbitration provision.

Here, the sale contract is similarly an arrangement pursuant to which plaintiff as the buyer sought to purchase and finance a car, and the dealership sought to profit by selling and financing the car. The arbitration provision itself similarly gives only plaintiff and the dealership the power to compel arbitration, and defendant has pointed to no other language or circumstances to distinguish this case from this analysis.

The Ninth Circuit in Ngo also interpreted this contractual language to establish that the third element had not been met, that is, that permitting the third party to enforce the contract must be consistent with the objectives of the contract and the reasonable expectations of the contracting parties, concluding:

“Nothing in the contract here evinces any intention that the arbitration clause should apply to BMW. The arbitration clause's enforcement provisions are limited to the dealership, the assignee, and Ngo. The compelling inference from this arrangement is that the parties knew how to give enforcement powers to non-signatories when they wished to do so but gave none to BMW.”

Plaintiff also notes that Ngo follows a line of federal district court cases addressing this third party beneficiary issue, including Safley v. BMW of North America, LLC (2021 USDC S.D. Cal.) 2021 WL 409722, cited in Ngo, as quoted above. Safley was a federal district court case which addressed and denied a motion to compel arbitration by a manufacturer warrantor defendant BMW, interpreting the same language in a Retail Installment Sale Contract with a dealership, which in that case had assigned its rights, but neither the dealership nor its assignee had been named a party to the action.

“The provision covers claims “between you [the Safleys] and us [BMW Encinitas] or our employees, agents, successors, or assigns....” (Sale Contract 2.) The provision also states that a covered dispute “shall, at your [the Safleys’] or our [BMW Encinitas's] election, be resolved by neutral, binding arbitration.” (Id.)

The Court is unconvinced that this narrower contract covers Defendant as a third-party beneficiary. Defendant does not demonstrate that it falls under one of the categories of third parties identified in the arbitration provision's claim coverage: the dealership's “employees, agents, successors, or assigns.” BMW Bank of North America—not Defendant—is the assignee and successor to the dealership's rights and responsibilities under the Sale Contract. And although Defendant may be the parent company of BMW FS, which in turn is apparently the parent company of BMW Bank of North America, these are all separate legal entities. “[C]orporation law is largely built on the idea that the separate legal existence of corporate entities should be respected—even when those separate corporate entities are under common ownership and control.” Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1038 (Del. Ch. 2006) (Strine, V.C.).

Therefore, without broader language like “parents” or “affiliates” in the arbitration clause, Defendant's argument that it “falls within the class of persons (i.e., assigns) whom the Arbitration Provision was intended to benefit” is unpersuasive.”

Here, there is not even minimal evidence offered concerning Hyundai Motor’s status with respect to the seller dealership Russell Westbrook, and, in any case, a similar analysis concerning the separateness of corporate entities would apply. Overall, defendant Hyndai Motor has failed to establish that it is a third-party beneficiary of the subject agreement entitled to enforce the arbitration provision.

In Boucher v. Alliance Title Co. (2005) 127 Cal.App.4th 262 the Second District found that a non-signatory defendant could invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims “when the causes of action against the non-signatory are ‘intimately founded in and intertwined’ with the underlying contract obligations.” Boucher, at 272.

Defendant argues that plaintiff’s complaint in this case not only presumes the existence of the sale contract but necessarily relies on its existence in order to maintain the causes of action under the Song-Beverly Act, as there would be no claims under Song Beverly but for the existence of the sales transaction created by the sale contract. Defendant argues that plaintiff should not be entitled to make use of the sale contract containing an arbitration provision so long as it worked to her advantage, just to then attempt to avoid it application in defining the forum in which the dispute should be resolved.

Defendant relies on Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, in which the court of appeal reversed an order denying a motion to compel arbitration, observing with respect to equitable estoppel in such a context:

“Equitable estoppel precludes a party from asserting rights 'he otherwise would have had against another' when his own conduct renders assertion of those rights contrary to equity." (Schwabedissen, supra, 206 F.3d at pp. 417–418.) In the arbitration context, a party who has not signed a contract containing an arbitration clause may nonetheless be compelled to arbitrate when he seeks enforcement of other provisions of the same contract that benefit him. (Id. at p. 418; NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 81 [100 Cal. Rptr. 2d 683] (NORCAL).)

This situation is not a case where plaintiff is trying to have it both ways, or enforce any term of the sale contract for the purchase of the vehicle against the manufacturer, as opposed to the separate manufacturer warranty. The complaint does not seek to enforce any term of the sale contract with the dealership against anyone and does not make any reference to that sale contract or include a copy in connection with the complaint. Plaintiff argues that the sale contract terms are limited to plaintiff’s obligations to make payments to the seller on the subject vehicle, and that plaintiff’s claims are brought only against Hyundai Motor for violations of the Song-Beverly Act under the warranty issued by Hyundai Motor when the vehicle was sold to the dealer.

Defendant relies on Mance v. Mercedes-Benz USA (2012 USDC N.D. Cal) 901 F. Supp.2d 1147, in which the district court granted a vehicle manufacturer’s motion to compel arbitration of a Song Beverly Act claim even though the manufacturer was not a signatory to the retail sale contract entered into with a vehicle dealer, and the buyer had not sued the dealer:

“And, upon examination, Mercedes–Benz should be allowed to compel Mr. Mance to arbitrate his claim because his claim ‘makes reference to or presumes the existence of’ the underlying contract. Mercedes–Benz's duty to comply with its warranty arose only when Mr. Mance bought the car. Had he not signed the contract, he would not have received the warranty from Mercedes–Benz. In other words, his claim for breach of warranty is premised on, and arises out of, the contract.”

However, this rationale in Mance was rejected by the Ninth Circuit analysis in Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1122, which suggests that the appropriate analysis here would conclude that in a case such as this one, where there is no mention of, or reliance on, the sale contract to support the statutory claims based on the manufacturer’s responsibility under separate warranty obligations relating to defects in the vehicle, the requisite intertwining, and equity are not present.

“Looking to California contract law, the correct analysis is whether Plaintiffs would have a claim independent of the existence of the Purchase Agreement (equitable estoppel applies “when the signatory must rely on the terms of the written agreement in asserting its claims against the nonsignatory,” Goldman, 173 Cal.App.4th at 222, 92 Cal.Rptr.3d 534(emphasis added), or “when the causes of action against the nonsignatory are intimately founded in and intertwined with the underlying contract obligations,” Jones, 195 Cal.App.4th at 20, 125 Cal.Rptr.3d 522 (emphasis added)), not whether the court must look to the Purchase Agreement to ascertain the requested relief. The emphasis of the case law is unmistakably on the claim itself, not the relief. Despite Toyota's focus on Plaintiffs' relief, Toyota offers no cases to support Toyota's proposed application.

Here, Plaintiffs' claims are premised on California consumer law, unfair competition, false advertising, breach of the implied warranty of merchantability, and breach of contract. In order for Toyota's equitable estoppel argument to succeed, Plaintiffs' claims themselves must intimately rely on the existence of the Purchase Agreements, not merely reference them. Toyota is correct that Plaintiffs' claims presume a transaction involving a purchase of a Class Vehicle. The claims do not, however, rely upon the existence of a Purchase Agreement. For illustration, a consumer who purchased a vehicle with cash instead of credit would still state a claim for which relief could be granted, absent a Purchase Agreement. In this regard, the facts resemble the facts of Goldman and Mundi, in which Plaintiffs' claims arose independently of the terms of the agreements containing arbitration provisions. Moreover, we note that Plaintiffs' First Amended Complaint never actually references the Purchase Agreement, either in the prayer for relief or otherwise.

Defendant also relies on Felisilda v. FCA US LLC (2000) 53 Cal.App.5th 486, in which the court of appeal found that the trial court had not erred in confirming an arbitration award after it had granted a motion to compel arbitration of a Song-Beverly Act claim which plaintiffs had filed against both the dealer who had sold them the subject vehicle and the vehicle manufacturer who had undertaken express warranties concerning the utility and performance of the vehicle. The court of appeal found that the arbitration provision in that case supported the trial court’s order despite plaintiffs’ argument that the manufacturer was not a signatory to the sales contract.

Defendant argues that the court in Felisilda addressed an arbitration provision in a vehicle sales contract which allowed arbitration of “any claim or dispute, whether in contract, tort, statute or otherwise…which arises out of or relates to…the 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.”) Defendant argues that since this case arises from alleged violations of warranties plaintiff received as a consequence of the sale contract, plaintiff is estopped from refusing to arbitrate its claim.

The court of appeal found that in the circumstances before it, in which the signatory dealership had moved to compel arbitration of the entire action, and the manufacturer did not oppose that motion, the trial court had correctly ordered that the entire matter be submitted to arbitration, noting that:

“Based on language in the sales contract and the nature of the Felisildas’ claim against FCA, we conclude the trial court correctly ordered that the entire matter be submitted to arbitration. In signing the sales contract, the Felisildas agreed that “[a]ny claim or dispute, whether in contract, tort, statute or otherwise ... between you and us ... which arises out of or relates to ... [the] condition of this vehicle ... shall ... be resolved by neutral, binding arbitration and not by a court action.” (Italics added.) Here, the Felisildas’ claim against FCA relates directly to the condition of the vehicle.”

Plaintiff points out that the case here is distinguishable from Felisilda on the ground there is no involvement of the dealership, and no claims are brought jointly against the manufacturer and the dealership. Instead, plaintiff here seeks to enforce the warranties owed by the manufacturer independently of the rights and duties set forth under the purchase contract. As noted above and argued in the opposition, in Felisilda, the dealer defendant from which the vehicle was obtained moved to compel arbitration, falling squarely within the parties defined in the sales contract with standing to compel arbitration, that is, “YOU,” the buyer, or “US,” defined as the seller. Here, there has been no motion to compel arbitration by the dealer seller, who is not even a party to this action.

Plaintiff argues that a critical distinction is derived from Felisila’s convoluted procedural posture that a manufacturer may not compel arbitration of Song-Beverly claims unless it is riding on the coattails of a signatory defendant. Plaintiff cites to numerous cases which have cited Felisilda since its ruling and which have found that the reasoning of Felisilda did not apply where the signatory dealership was not part of the action. See Ruderman v. Rolls Royce Motor Cars, LLC (C.D.Cal. 2021) 511 F.Supp.3d 1055, 1060; Safley v. BMW of North America, LLC (S.D.Cal., Feb. 5, 2021) 2021 WL 409722, at 7-8; Messih v. Mercedes-Benz USA, LLC (N.D.Cal. 2021) 2021 WL 2588977, at 10-11; Nation v. BMW of North America, LLC (C.D.Cal. 2020) 2020 WL 7868103, at 4.

Plaintiff also argues that the Ninth Circuit has recently distinguished Felisilda on this ground in reversing the district court’s granting of a manufacturer’s motion to compel arbitration, in reliance on Ngo, discussed above, in which, in rejecting the argument that equitable estoppel could be applied in that case, the Ninth Circuit reasoned:

“The plaintiffs in Felisilda purchased a used 2011 Dodge Grand Caravan from the Elk Grove Dodge dealership and signed a purchase agreement containing an arbitration provision that was virtually identical to the one Ngo signed. See id. After discovering “serious defects” with the car, the Felisildas sued both the dealership and the manufacturer. Id. at 491, 266 Cal.Rptr.3d 640. The dealership moved to compel arbitration. Id. at 489, 266 Cal.Rptr.3d 640. After the manufacturer filed a notice of non-opposition, the trial court compelled arbitration. Id. at 491, 266 Cal.Rptr.3d 640. The Felisildas then dismissed the dealership and the district court ordered it to arbitrate with the manufacturer alone. Id. at 499, 266 Cal.Rptr.3d 640. The California Court of Appeal affirmed. Id.

It makes a critical difference that the Felisildas, unlike Ngo, sued the dealership in addition to the manufacturer. In Felisilda, it was the dealership—a signatory to the purchase agreement—that moved to compel arbitration rather than the non-signatory manufacturer. See id. at 489, 266 Cal.Rptr.3d 640 (“Relying on the retail installment sales contract ... signed by the Felisildas, Elk Grove Dodge moved to compel arbitration.”). Furthermore, the Felisildas dismissed the dealership only after the court granted the motion to compel arbitration. Accordingly, Felisilda does not address the situation we are confronted with here, where the non-signatory manufacturer attempted to compel arbitration on its own. We therefore decline to affirm on the ground of equitable estoppel.

In this case, it is clear that the signatory dealership is not named or pursued in this action, and is not seeking to compel arbitration, but the motion is brought by the manufacturer alone, without implicating other parties. The distinction also applies here, and the motion on the ground of equitable estoppel as well.

Plaintiff points out to the extent defendant argues that the arbitration provision is expressly subject to the FAA, the provision also provides, “If federal law provides that a claim or dispute is not subject to binding arbitration, this Arbitration Provision shall not apply to such claim or dispute.” Ngo and Kramer as federal decisions would accordingly are applicable here to defeat any argument that there exists a valid written agreement under federal law to arbitrate between the party seeking to compel arbitration and plaintiff.

Overall, considering the underlying basis of the equitable indemnity doctrine, as emphasized in Metalclad, above, upon which defendant relies, this case is not a case where plaintiff’s own conduct renders assertion of plaintiff’s rights contrary to equity, that is where plaintiff is seeking enforcement of other provisions of the same contract that benefit her. See Metalclad, quoted above, at 1713. This case is also not a case where plaintiff is seeking to simultaneously invoke the duties and obligations of any defendant under the sale contract while simultaneously seeking to avoid the arbitration provision of that contract.

Defendant’s UNOPPOSED Request for Judicial Notice in Support of Defendant’s Motion to Compel Binding Arbitration is GRANTED in part. The Court takes judicial notice of the complaint in this action to the extent permitted by Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (e.g., the court takes judicial notice of the existence of court records, but not the truth of hearsay allegations contained therein, except in connection with certain exceptions enumerated in that case.).

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