Judge: Stephen I. Goorvitch, Case: 22STCV12868, Date: 2023-01-24 Tentative Ruling

Case Number: 22STCV12868    Hearing Date: January 24, 2023    Dept: 39

Victor Navarette v. Nissan North America, Inc.

Case No. 22STCV12868

Motion to Compel Arbitration

            Plaintiff Victor Navarette (“Plaintiff”) filed this Song-Beverly Consumer Warranty Act case against Nissan North America (“Defendant”).  Defendant moves to compel arbitration of  Plaintiff’s claims.  First, the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy.  (See Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.)  For this step, “it is not necessary to follow the normal procedures of document authentication.”  (Id., quoting Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.)  “If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its initial burden of persuasion.”  (Ibid.)  Then, “the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement.”  (Id., citation omitted.)

            In this case, Defendant proffers the arbitration agreement, and Plaintiff does not introduce any evidence challenging its authenticity.  For example, Plaintiff does not provide admissible evidence suggesting that the arbitration agreement is not authentic, or that he “never saw or does not remember seeing the agreement,” or that he “never signed or does not remember signing the agreement.”  (Id., citations omitted.)  Therefore, the Court shall consider the arbitration agreement, even though it is not accompanied by a declaration from a document custodian of Defendant or Defendant’s dealership.

The motion is granted, per Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486.  That case held that the doctrine of equitable estoppel permits a non-signatory automobile manufacturer to enforce an identical arbitration clause.  In the alternative, the Court finds that Defendant is a third-party beneficiary of the arbitration agreement.  A non-signatory to an arbitration agreement may enforce an arbitration agreement if the non-party is a third-party beneficiary.  (Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 Cal.App.4th 1, 9-10; see also Civ. Code, § 1559.)  To establish that it is a third-party beneficiary to a contract, a party must “plead a contract which was made expressly for his benefit and one in which it clearly appears that he was a beneficiary . . . .”  (Luis v. Orcutt Town Water Co. (1962) 204 Cal.App.2d 433, 441.)  The arbitration agreement expressly covers lawsuits based on the “condition of this vehicle” and references “third parties who do not sign this contract” has having a basis to enforce the arbitration agreement.

Plaintiff argues that Defendant has waived the right to compel arbitration.  The issue whether litigation conduct waived the right to compel arbitration must be decided by the trial court, not the arbitrator, under the FAA unless the agreement requires the arbitrator to determine this issue.  (Hong v. CJ GVC America Holdings, Inc. (2013) 222 Cal.App.4th 240, 258.)  The arbitration agreement does not delegate this issue to the arbitrator, so the Court will resolve the issue. 

Under the FAA, waiver of the right to compel arbitration is not viewed as a question of substantive contract law.  Thus, federal law, and not state law, governs the inquiry whether a party has waived its right to compel arbitration.  (See, e.g., Aviation Data, Inc. v. American Express Travel Related Services Company, Inc. (2010) 152 Cal.App.4th 1522, 1535.)  Under federal law, the party arguing waiver of arbitration bears a heavy burden.  (Britton v. Co-op Banking Group, 916 F.2d 1405, 1413 (9th Cir. 1990.)  There is no concrete test to determine whether a party has engaged in acts that are inconsistent with its right to arbitrate.  (Martin v. Yasuda, 839 F.3d 1118, 1125 (9th Cir. 2016).  Instead, the question of waiver depends on the totality of the moving party’s actions.  (Ibid.)  Any question whether a party has waived the right to compel arbitration should be resolved in favor of arbitration.  (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24.)  Plaintiff argues that a delay of three months between the time Defendant filed an answer and filed this motion constitutes waiver.  This record does not support Plaintiff’s argument.  Defendant’s actions do not evidence an intention to waive its right to compel arbitration, and Plaintiff cannot demonstrate sufficient prejudice. 

            The Court has considered Plaintiff’s remaining arguments and finds none is persuasive.  Therefore, the Court orders as follows:

1.         Defendant’s motion to compel arbitration is granted.

2.         The Court orders the parties to meet-and-confer, and to schedule the arbitration forthwith.

            3.         The Court advances and vacates the final status conference and trial dates.  The Court shall hold an Order to Show Cause why this case should not be dismissed following arbitration on July 10, 2023, at 8:30 a.m.  The Court provides notice that if Plaintiff’s counsel does not appear, either remotely or in-person, the Court will assume this matter has been resolved by way of arbitration or settlement and will dismiss this case with prejudice.

            4.         Defendant’s counsel shall provide notice and file proof of such with the Court.