Judge: Stephen I. Goorvitch, Case: 22STCV14430, Date: 2023-03-02 Tentative Ruling
Case Number: 22STCV14430 Hearing Date: March 2, 2023 Dept: 39
Socorro Fuentes,
et al. v. Nissan North America, Inc.
Case No.
22STCV14430
Motion to Compel
Arbitration
Plaintiffs
Socorro and Juan Fuentes (collectively, “Plaintiffs”) filed this action under
the Song-Beverly Consumer Warranty Act against Nissan North America, Inc.
(“Defendant”). The complaint was filed
on April 29, 2022. Defendant filed a
motion to compel arbitration on December 8, 2022.
The moving
party on a motion to compel arbitration “bears the burden of proving the
existence of a valid arbitration agreement by a preponderance of the evidence,
while a party opposing the petition bears the burden of proving by a
preponderance of the evidence any fact necessary to its defense. The
trial court sits as the trier of fact, weighing all the affidavits,
declarations, and other documentary evidence, and any oral testimony the court
may receive at its discretion, to reach a final determination.” (Ruiz v. Moss Bros. Auto Group, Inc.
(2014) 232 Cal.App.4th 836, 842, internal citations omitted.)
Defendant
proffers a sales contract signed by Plaintiffs.
(Declaration of Nicholas S. Maugeri II, ¶¶ 5-7 & Exh. #4.) Defendant also proffers a copy of the
arbitration agreement contained within that sales contract. (Id., ¶ 8 & Exh. #5.) Plaintiffs do not challenge the authenticity
of these documents. Therefore,
Defendant’s showing is sufficient.
The
agreement provides that Plaintiffs will arbitrate “[a]ny claim or dispute,
whether in contract, tort, statute or otherwise . . . between [Plaintiff] and [Dealership] or
[Dealership]’s employees, agents, successors or assigns, which arises out of or
relates to [Plaintiff’s] 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 .
. . be resolved by neutral, binding arbitration and not by a court
action.” (Id., Exh. #5.)
Plaintiffs argue that the
arbitration agreement is not enforceable with respect to Defendant because
Defendant’s representative never signed the agreement. Plaintiff is incorrect, 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 enforce this arbitration
agreement. This arbitration agreement is
governed by the Federal Arbitration Act (the “FAA”). 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; see also Omar v.
Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 963 (holding that the issue of
waiver based upon non-litigation conduct is decided by the arbitrator).)
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.) In this case, Defendant
filed an answer on June 20, 2022. The
motion to compel arbitration was filed approximately five months later, on
December 8, 2022. Plaintiff identifies no
litigation conduct in the interim that is inconsistent with the intention to
seek to compel arbitration, or that suggests Defendant chose to litigate the
case in the Superior Court.
Based upon the
foregoing, the Court orders as follows:
1. Defendant’s motion to compel
arbitration is granted.
2. The Court advances and vacates all
pending dates.
3. The Court orders the parties to
meet-and-confer and to schedule the arbitration forthwith.
4. The Court sets an order to show cause
why this case should not be dismissed following arbitration for November 27,
2023, at 8:30 a.m. The Court provides
notice: If Plaintiff’s counsel does not appear, either remotely or in-person,
absent good cause, the Court will assume the case has been resolved by way of
arbitration or settlement and shall dismiss this case with prejudice.
5. Defendant’s counsel shall provide
notice and file proof of such with the Court.