Judge: Stephen I. Goorvitch, Case: 22STCV26056, Date: 2023-02-02 Tentative Ruling

Case Number: 22STCV26056    Hearing Date: February 2, 2023    Dept: 39

Marbely Villalobos v. Nissan North America, Inc.

Case No. 22STCV26056

Motion to Compel Arbitration

            Plaintiff Marbely Villalobos (“Plaintiff”) filed this action under the Song-Beverly Consumer Warrant Act against Defendant Nissan North America, Inc. (“Defendant”).  Defendant now moves to compel arbitration, relying on an arbitration agreement authenticated by Defendant’s counsel.  The declaration states that the agreement is “a true and correct copy of what I am informed and believe is a Retail Installment Sale Contract (the ‘Sales Contract’) relating to Plaintiff’s purchase of the subject vehicle at issue in this action” and that “I am informed and believe that the Sales Contract (Exhibit 3) was executed and maintained in the regular course of business.”  (Declaration of Nicholas S. Maugeri II, ¶¶ 4-5.)  Plaintiff’s counsel objected, arguing that the declarant—defense counsel—is not a custodian or records for Nissan and has no personal knowledge of this document, i.e., his knowledge of this document is based upon hearsay.  Defendant proffered a declaration from a custodian of records with the reply brief, but that did not afford sufficient notice and opportunity to be heard.  Therefore, the Court continued the hearing on the motion and authorized Plaintiff to file a supplemental opposition.  Plaintiff failed to do so.

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 this case does not apply because the dealership is not a party to this action.  A plaintiff cannot circumvent Felisilda merely by electing not to name the dealership as a party.  The Court has considered Plaintiff’s remaining arguments, but they lack merit.    

            In the alternative, Plaintiff argues that the Court should order the parties to arbitration through JAMS or Judicate West.  That issue is not properly before the Court.  The arbitration agreement states that Plaintiff may choose the American Arbitration Association or any other organization to which Defendant’s counsel agrees.  Should Defendant act in bad faith, Plaintiff may file a petition under Code of Civil Procedure section 1281.2.  The Court directs the parties to its order in Violeta Hernandez v. Nissan North America, Inc., Case No. 22STCV02852.

            Based upon the foregoing, 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 case management conference and the hearing dates on all pending motions.  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.