Judge Ralph C. Hofer, Case Number: 23GDCV00349, Date: 2023-08-11 Tentative Ruling

Plaintiff Mohammad-Iman Ghazizadeh alleges that in May of 2022, plaintiff purchased a 2022 Nissan Ultima vehicle. Plaintiff alleges that defendant Nissan North America, Inc. (Nissan) issued a written warranty and agreed to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.

Plaintiff alleges that defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including electrical and engine system defects. Plaintiff alleges that the nonconformities impair the use, value and/or safety of the vehicle.

“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, arbitration is also recognized as “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 Nissan has submitted a copy of a Retail Installment Sale Contract (Sale Contract) between Glendale Nissan as Seller-Creditor and Mohammad-Iman Ghazizadeh, as Buyer. [Antonyan Decl., para. 6, Ex. A]. This Sale Contract includes an Arbitration Provision. [Ex. A, following para. 8]. Glendale Nissan, 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 Antonyan Declaration submitting this document. The declarant, Eleanora Antonyan, states the declarant is an associate with the attorneys of record for defendant Nissan in this action, and that “Attached as Exhibit A is a true and correct copy of what I am informed and believed is the Retail Installment Sale Contract… for the purchase of the 2022 Nissan Altima…at issue in this action.” [Antonyan Decl., paras. 1, 6]. There are no facts set forth to show how this declarant would have sufficient personal knowledge to declare that Exhibit A is a true and correct copy of the subject Sale Contract, and the declarant clearly concedes the document is submitted on information and belief. It does not appear that the attorney for defendant would have personal knowledge sufficient to authenticate the document.

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 addition, the document submitted under counsel’s declaration appears to constitute hearsay without any qualified witness establishing a business records exception. The declaration states, “I am informed and believe that the Sales Contract was executed and maintained in the regular course of business.” [Antonyan Decl., para. 7]. Again, there is no factual basis alleged pursuant to which the attorney would know the business practices of any party which would have maintained the Sale Contract, such as plaintiff or Glendale Nissan.

“A petition to compel arbitration or stay proceedings pursuant to Code of Civil Procedure section 1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be attached to the petition and incorporated by reference.”

“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.

However, defendant argues that the normal procedures of document authentication do not apply to establish the existence of an arbitration agreement, in reliance on Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, in which 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. 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 parties opposing arbitration to produce evidence of facts necessary to a defense.

However, because 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 in Gamboa, and because plaintiff in opposition affirmatively relies on provisions of the subject Sale Contract, the objections will be 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 cited by defendant, 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. A, following para. 8].

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.”

Defendant argues that while it did not sign the Sale Contract, it can enforce the Arbitration Provision under the doctrine of equitable estoppel because plaintiff’s claims against defendant arises out of and are intimately founded in and intertwined with the obligations of the Sale Contract.

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.

“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 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 sales contract with standing to compel arbitration, that is, “YOU,” the buyer, or “US,” defined as the seller. The dealer was the seller in that case, but the dealer has not been named as a defendant in this case, which names only the manufacturer, so there has been no motion to compel arbitration by the dealer-seller here.

Defendant argues that plaintiff’s claims here are inextricably intertwined with the Sale Contract because the Sale Contract provides plaintiff standing under the Song-Beverly Act which requires that a consumer buy or lease a new motor vehicle from a person engaged in the business of manufacturing, distributing, selling or leasing new motor vehicles at retail to bring a claim, and that the law recognizes the close relationship between warranties and underlying purchase agreements that create them. Defendant also argues because plaintiff invokes contractual remedies against defendant, the fact that the obligations are inextricably intertwined is further confirmed.

Plaintiff in opposition point out that the complaint here does not rely on any provision of the Sale Contract with the dealership for financing the purchase, but relies on the separately issued warranty from the manufacturer, seeking to enforce the requirements of state consumer protection law and related contract remedies, which are independent of any agreement plaintiffs entered into with the dealership.

“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 without implicating other parties. The distinction also applies 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 Nissan, 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 defendants rely, this does not appear to be a case where plaintiffs’ own conduct renders assertion of plaintiffs’ rights contrary to equity, that is where plaintiffs are seeking enforcement of other provisions of the same contract that benefit plaintiffs. See Metalclad, quoted above, at 1713.

Moreover, defendant recognizes in the motion that plaintiff in opposition may seek to avoid arbitration by relying on a recent court of appeal decision, Ford Motor Warranty Cases (2023) 89 Cal.App. 5th 1324. (Both sides refer to the case as Ochoa v. Ford Motor Co. (Ochoa)). Plaintiff does in fact argue in opposition that the case supports denial of the motion to compel arbitration here.

“The issue to be briefed and argued is limited to the following: Do manufacturers' express or implied warranties that accompany a vehicle at the time of sale constitute obligations arising from the sale contract, permitting manufacturers to enforce an arbitration agreement in the contract pursuant to equitable estoppel?

Pending review, the opinion of the Court of Appeal, which is currently published at 89 Cal.App.5th 1324, 306 Cal.Rptr.3d 611, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321, 369 P.2d 937, to choose between sides of any such conflict. (See Standing Order Exercising Authority Under California Rules of Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an Underlying Published Court of Appeal Opinion, Administrative Order 2021-04-21; Cal. Rules of Court, rule 8.1115(e)(3) and corresponding Comment, par. 2.)”

“As provided in Standing Order Exercising Authority Under California Rules of Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an Underlying Published Court of Appeal Opinion, Administrative Order 2021-04-21, under this subdivision, when the Supreme Court grants review of a published Court of Appeal opinion, the opinion may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow superior courts to exercise discretion under Auto Equity, supra, 57 Cal.2d at page 456, to choose between sides of any such conflict. Superior courts may, in the exercise of their discretion, choose to follow a published review-granted Court of Appeal opinion, even if that opinion conflicts with a published, precedential Court of Appeal opinion. Such a review-granted Court of Appeal opinion has only this limited and potential precedential effect, however; superior courts are not required to follow that opinion's holding on the issue in conflict. Nor does such a Court of Appeal opinion, during the time when review is pending, have any precedential effect regarding any aspect or holding of the Court of Appeal opinion outside the part(s) or holding(s) in conflict. Instead it remains, in all other respects, “potentially persuasive only.”

In Ford Motor Warranty Cases, (Ford Warranty) 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.” Ford Warranty, at 1329. 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.” Ford Warranty, at 1329.

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. Ford Warranty, at 1330.

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 sales 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.” Ford Warranty, at 1335.

“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.”

As noted above in the Supreme Court’s opinion granting the petition for review, the Ford Warranty opinion may be considered for its persuasive value pending review, and also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.

“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.”

Defendant argues that the court should follow the reasoning of Felisida, as it recognized that manufacturer’s express warranties are part of what consumers purchase when entering into sales contracts, and focuses on the law as developed in light of the Song-Beverly remedies, when the authorities relied upon by Ford Warranty largely predated the enactment of the Song-Beverly Act.

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

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 cited by defendant, 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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