Judge Ralph C. Hofer, Case 22GDCV00609 2023-05-04 Tentative Ruling

Plaintiff Jose Guadalupe Quezada alleges that in September of 2020, plaintiff purchased a 2020 Ford F-350 vehicle. Plaintiff alleges that defendant Ford Motor Company (Ford) warranted the vehicle and agreed preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.

The complaint alleges that plaintiff delivered the vehicle to an authorized Ford repair facility for repair of the nonconformities, but that defendant was unable to conform the vehicle to the applicable express warranty after a reasonable number of repair attempts.

“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:

Generally, 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). However, as pointed out in the opposition, arbitration is “strictly a matter of consent.” Granite Rock Co. v. International Broth. of Teamsters (2010) 561 U.S. 287, 299, quotation omitted; Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 252; Civil Code section 1648 (a contract “extends only to those things concerning which it appears that the parties intended to contract.”) Accordingly, “[t]he strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement.” Comedy Club, Inc. v. Improv West Associates (9th Cir. 2009) 553 F.3d 1277, 1287, quoting Buckner v. Tamarin (2002, 2nd Dist.) 98 Cal.App. 4th 140, 142; see also, Engineers & Architects Assn. v. Community Development Dept. (1994, 2nd Dist.) 30 Cal.App.4th 644, 653.

In this case, defendant has submitted a copy of a Retail Installment Sale Contract (Sale Contract) between Galpin Motors Inc. as Seller-Creditor and Jose Guadalupe Quezada, as Buyer. [Won Decl., para. 7, Ex. B]. This Sale Contract includes an Arbitration Provision. [Ex. B, p. 7 of 7]. Galpin Motors Inc., the party named as Seller-Creditor in the Contract, has not been named as a party to this action.

Plaintiff has filed objections to the Won Declaration submitting this document. The declarant, Jonathan Won, states he is counsel for defendant Ford in this action, that Ford propounded a limited set of discovery on the issue of requesting the full sale contract and authentication thereof so that Ford could file this motion, but plaintiff refused to provide the sale contract and Ford had to obtain the sale contract by sending a subpoena to Galpin Ford. [Won Decl., para. 4]. Won then states that “A true and correct copy of the Retail Sale Contract… is attached hereto as Exhibit B.” [Won Decl., para. 7]. There is no copy of the subpoena to Galpin Ford attached, or a declaration of the custodian of records in response to the subpoena. It does not appear that counsel for Ford would have sufficient personal knowledge to declare that Exhibit B is a true and correct copy of the subject Sale Contract, and it does not appear that the attorney for defendant would have personal knowledge sufficient to authenticate the document.

“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.”

Under Evidence Code section 702 (a), except for in connection with expert witness opinion testimony, “the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against a party’s objection, such personal knowledge must be shown before the witness may testify concerning the matter.”

“In determining whether an enforceable arbitration agreement exists, the initial burden is on the party petitioning to compel arbitration. “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., supra, 14 Cal.4th at p. 413; see Engalla v. Permanente Medical Group (1997) 15 Cal.4th 951, 972 [64 Cal. Rptr. 2d 843, 938 P.2d 903].) Once the petitioner has met that burden, the burden shifts to the party opposing arbitration, to “produc[e] evidence of, and prov[e] by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 413.”

Under federal law as well, the moving party to compel enforcement of an arbitration agreement bears the burden of establishing the existence of a valid agreement to arbitrate and that the agreement encompasses the dispute at issue, while the opposing party bears the party of establishing any defenses to enforceability. Sanfilippo v. Tinder, Inc. (C.D. Cal. 2018) 2018 WL 6681197, 2.

Here, the objections to the declaration could properly be sustained, and the court could find that defendant has accordingly failed to prove, either by admissible evidence, or by a preponderance of the evidence, the existence of a valid arbitration agreement. However, the court elects not to do so for the reasons stated below.

Moreover, there is case law under which it is suggested that the procedures of document authentication are relaxed in connection with establishing the existence of an arbitration agreement. In Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218, the court of appeal found that the trial court had improperly denied a petition to compel arbitration on the ground that the purported arbitration agreement had not been properly authenticated. However, the court of appeal in Condee observed that, “In this case, although no evidence was ever introduced to verify the signature’s authenticity, it was never challenged.” Condee, at 218. The case also involved a situation where the trial court had denied a proffer of a declaration of a custodian of records which purported to authenticate the agreement. Condee, at 217. Similarly, the Second District observed in Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165, that if the moving party submits an unauthenticated agreement to meet its prima facie burden, “and the opposing party does not dispute the existence of the arbitration agreement,” then nothing more is required on the initial burden.

Here, there has been an objection asserted, and no declaration of a custodian offered to authenticate the material to which objection has been made, and the court could find that defendant has failed to meet its initial burden sufficient to shift the burden to the party opposing arbitration to produce evidence of facts necessary to a defense.

However, plaintiff has not affirmatively asserted that plaintiff signatory never saw or signed the agreement, or does not remember seeing or signing the agreement, as the Second District suggested would be appropriate to defeat an authentication argument in Gamboa. In addition, plaintiff in opposition affirmatively relies on provisions of the subject Sale Contract, and does not make a legal argument apart from the separately filed objections concerning the propriety of the court considering the Sale Contract submitted. The objections accordingly are noted, but the court will, in light of these factors, nevertheless consider the Sale Contract based on the relaxed authentication standard applied under case law, and the waiver implied by the reliance on the Sale Contract by plaintiff in the opposition.

As a further preliminary matter, the moving papers argue that the question of arbitrability is for the arbitrator to decide once it is shown that a valid arbitration agreement exists which can be enforced. As discussed below, defendant has not established that a valid arbitration exists which may be enforced by the moving party.

In any case, defendant argues that the arbitrability determination should be made by the arbitrator, as the arbitration agreement states that claims subject to arbitration include, “the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute.” [Ex. 1, p. 7 of 7, para. 3].

However, an agreement to submit arbitrability to an arbitrator must contain clear and unmistakable evidence that the parties agreed to arbitrate arbitrability, and in cases such as this one, involving a non-signatory to such an arbitration agreement, the agreement does not meet this standard. In Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1122, the Ninth Circuit noted that while the arbitration agreements in that case may have constituted agreements to arbitrate arbitrability with the contractual party dealership, that was not the case as to the non-signatories:

“Given the absence of clear and unmistakable evidence that Plaintiffs agreed to arbitrate arbitrability with nonsignatories, the district court had the authority to decide whether the instant dispute is arbitrable. See United Bhd. of Carpenters and Joiners of Am. v. Desert Palace, Inc., 94 F.3d 1308, 1310 (9th Cir.1996).”

The Second District in Benaroya v. Willis (2018) 23 Cal.App.5th 462, found that the trial court had improperly confirmed an arbitration award, holding that only the court and not the arbitrator had authority to determine whether a non-signatory to an arbitration could be compelled to arbitrate. Benaroya, at 810. The Second District in Benaroya held, “The question of whether a nonsignatory is a party to an arbitration agreement is one for the trial court in the first instance.” Benaroya, at 469, quoting American Builder's Assn. v. Au-Yang (1990, 2nd Dist.) 226 Cal.App.3d 170, 179.

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 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 noted above, the parties and signatories to this Sale Contract are Seller-Creditor, Galpin Motor’s Inc., and the Buyer, Jose Guadalupe Quezada. Moving defendant is not named as a party to this Sale Contract and did not sign it. [See Ex. B].

Defendant Ford argues that while it did not sign the Sale Contract, it can enforce the Arbitration Provision pursuant to its express language and under the doctrine of equitable estoppel because plaintiffs’ claims against defendants arise out of and are intertwined with the obligations of the Sale Contract.

With respect to the argument that defendant is entitled to enforce the arbitration provision based on equitable estoppel, 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, quotation omitted.

Defendant cites to 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).)”

Defendant argues that it can compel plaintiff to arbitrate the claims in the complaint based on equitable estoppel, relying on Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, in which the court of appeal found that the trial court had not erred in granting 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 which 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 “[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.” Felisilda, at 496.

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 Sale 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 sale contract withstanding to compel arbitration, that is, “YOU,” the buyer, or “US,” defined as the seller. The dealer was the seller in that case, but there has been no motion to compel arbitration by the dealer which is the seller here.

Defendant argues that plaintiff’s claims here are inextricably intertwined with the Sale Contract because the claims arise out of plaintiff’s purchase and service of the vehicle, and that if plaintiff had not entered into the Sale Contract, plaintiff would not have received the vehicle or the corresponding warranties and certifications from defendant Ford. Defendant also argues that the arbitration provision also specifically states that either party to the Sale Contract may elect to enforce arbitration for any claims arising out of “any such relationship with third parties who do not sign this contract.”

“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 seller dealership is not named or pursued in this action, and is not seeking to compel arbitration, but the motion is brought by the manufacturer. The distinction would also apply here to justify denying the motion.

Plaintiff cites to 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.

Similarly, in this case, plaintiff’s claims are not rooted in the Sale Contract, there is no reliance on any contract terms from the Sale Contract in the claims against defendant Ford, and all of plaintiff’s claims would be the same had plaintiff not financed the purchase of the vehicle, but obtained the vehicle in some other manner.

Overall, considering the underlying basis of the equitable indemnity doctrine, as emphasized in Metalclad, above, upon which defendant relies, this does not appear to be 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 plaintiff. See Metalclad, quoted above, at 1713.

In Ochoa v. Ford Motor Company (Ford Motor Warranty Cases) (2023) 2023 WL 2768484, the Second District affirmed a trial court order denying the motion of defendant Ford Motor Company (FMC) to compel arbitration of plaintiffs’ claims relating to defects in vehicles it manufactured, agreeing with the trial court that FMC, “could not compel arbitration based on plaintiffs’ agreements with the dealers that sold them the vehicles.” Ochoa, at 1. With respect to equitable estoppel, the Second District held, “Equitable estoppel does not apply because, contrary to FMC’s arguments, plaintiffs’ claims against it in no way rely on the agreements.” Ochoa, at 1.

In analyzing the equitable estoppel argument, the Second District addressed an arbitration provision including the same relevant language included in the Sale Contract here, and expressly declined to follow the Third District determination that equitable estoppel applied based on the same contractual language in Felisilda. Ochoa, at 4-5.

The court of appeal disagreed with the Felisilda court’s interpretation of broadly calling for arbitration of claims against third party non-signatories based on the language, “including any such relationship with third parties who do not sign this contract,” reasoning that the language of the sale contracts delineated the subject matter of claims the purchasers and dealers agreed to arbitrate. The court of appeal also offered a reasoning not included in the federal cases, based on interpretation of the sale contracts and the typical components of a vehicle sale transaction, describing several examples of third party transactions which the parties to a sale contract could themselves reasonably expect to elect to arbitrate:

“We do not read this…language as consent by the purchaser to arbitrate claims with third party nonsignatories. Rather, we read it as a further delineation of the subject matter of claims the purchasers and dealers agreed to arbitrate. They agreed to arbitrate disputes “between” themselves—“you and us”—arising out of or relating to “relationship[s],” including “relationship[s] with third parties who [did] not sign th[e] [sale] contract[s],” resulting from the “purchase, or condition of th[e] vehicle, [or] th[e] [sale] contract.”

Purchasers, like plaintiff Mathew Davidson-Codjoe, whose sale contract we described above, can elect to buy insurance, theft protection, extended warranties and the like from third parties, and they can finance their transactions with those third parties under the sale contracts. The “third party” language in the arbitration clause means that if a purchaser asserts a claim against the dealer (or its employees, agents, successors or assigns) that relates to one of these third-party transactions, the dealer can elect to arbitrate that claim. It says nothing of binding the purchaser to arbitrate with the universe of unnamed third parties.”

“no plaintiffs alleged violations of the sale contracts’ express terms. Rather, plaintiffs’ claims are based on FMC’s statutory obligations to reimburse consumers or replace their vehicles when unable to repair in accordance with its warranty. Certain plaintiffs also sued on theories of breach of implied warranty or merchantability and fraudulent inducement. Not one of the plaintiffs sued on any express contractual language in the sale contracts.”

“The sale contracts include no warranty, nor any assurance regarding the quality of the vehicle sold, nor any promise of repairs or other remedies in the event problems arise. To the contrary, the sale contracts disclaim any warranty on the part of the dealers, while acknowledging no effect on “any warranties covering the vehicle that the vehicle manufacturer may provide.” In short, the substantive terms of the sale contracts relate to sale and financing and nothing more.”

The Second District also rejected the manufacturer’s argument in that case that the warranty claims were founded in the sale contracts, explaining, by reference to multiple authorities, that “California law does not treat manufacturer warranties imposed outside the four corners of a retail sale contract as part of the sale contract.” Ochoa, at 5.

“Again, the “ ‘ “fundamental point” ’ ” of using equitable estoppel to compel arbitration is to prevent a party from taking advantage of a contract's substantive terms while avoiding those terms requiring arbitration. (Felisilda, supra, 53 Cal.App.5th at p. 496, 266 Cal.Rptr.3d 640.) Plaintiffs’ claims in no way rely on the sale contracts. Equitable estoppel does not apply.”

To the extent the Ochoa case from the Second District may be argued to contradict Felisilda, out of the Third District, the trial court may follow either precedent. In Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, the California Supreme Court, in considering the rule of stare decisis, observed:

“Of course, the rule under discussion has no application where there is more than one appellate court decision, and such appellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.”

This court has carefully reviewed the analysis of both Felisilda, and Ochoa, and opts to apply the analysis set forth in Ochoa, finding that the reasoning is sound, and follows and further develops sound reasoning applied since Felisilda by the Ninth Circuit in Kramer and Ngo.

To the extent defendant Ford makes a broad argument that the language of the Sale Contract is broad enough to encompass the claims, plaintiff in opposition argues that the Sale Contract disclaimed all warranties by the dealer, and more importantly, that the Arbitration Provision expressly encompasses only claims between “you,” defined as “the Buyer (and Co-buyer, if any)” and “we” or “us,” defined as the “Seller-Creditor,” or Galpin Motor Inc., the dealership from which plaintiff purchased the vehicle and obtained financing. [See Ex. B, p. 1]. Plaintiff argues that the Sale Contract, by limiting the parties who could enforce the arbitration clause to plaintiff and Galpin Motor Inc., limited the ability to invoke the arbitration provision to Galpin Motor Inc. The provision accordingly cannot by its own express language be invoked by Ford, or anyone else falling outside the Sale Contract’s definitions of “you” and “we.”

On this point, the Ninth Circuit in Ngo, supra, set forth the “you” and “we” designations in that case from the same form used here, and noted 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. 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.

“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 Quezada 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 the buyer and the seller dealership the power to compel arbitration, not the manufacturer, and defendant has pointed to no other language or circumstances to distinguish this case from the Ngo analysis, which, as discussed above, and again below, was accepted by the Second District in Ochoa.

“Any interest FMC may have in where its dealers and consumers choose to resolve their disputes is remote and certainly not articulated in FMC's briefing. If the signatories had intended to benefit FMC, such a purpose would have been easy to articulate. They could have simply named FMC—directly or by class as the vehicle's manufacturer—as a person entitled to compel arbitration. But they did not. What they said was that “EITHER YOU OR WE”—the purchaser or the dealer—“MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION,” and reiterated that arbitrable disputes “shall, at your or our”—the purchaser's or the dealer's—“election, be resolved by neutral, binding arbitration ....” (Italics added.)….

Finally, allowing FMC to enforce the arbitration provision as a third party beneficiary would be inconsistent with the “reasonable expectations of the contracting parties” (Goonewardene, supra, 6 Cal.5th at p. 830, 243 Cal.Rptr.3d 299, 434 P.3d 124) where they twice specifically vested the right of enforcement in the purchaser and the dealer only.”

This court again finds the analysis in Ochoa and the other cited authorities in the opposition distinguishing Felisida, and interpreting the Sale Contract language, well-reasoned and appropriate, and will follow the court of appeal precedent set forth in Ochoa.

As defendant has failed to establish it is entitled as a non-signatory to enforce the arbitration provision either under the express language of the Sale Contract and arbitration provision, or based on equitable estoppel, the motion is denied.

While the Court finds the objections would ordinarily justify disregarding the Sale Contract, the Court will nevertheless consider the Sale Contract submitted, although without proper authentication, based on the relaxed authentication standard applied under case law, and the waiver implied by the reliance by plaintiff in the opposition papers on the terms of the submitted Sale Contract.

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