Judge: Thomas S. Mcconville, Case: 2023-01300577, Date: 2023-07-17 Tentative Ruling

Defendant Panda Motors, Inc. dba California Motors Direct [“CMD”], Motion to Compel Arbitration and Stay Action is GRANTED. [CCP § 1281.2]  This action is stayed as between CMD and plaintiff pending completion of arbitration.  [CCP §1281.4]

Under CCP §1281.2, on a Motion to Compel Arbitration, if the court determines that a written agreement to arbitrate a controversy exists, it shall order arbitration of the controversy, unless there has been a wavier or there are grounds for recission. 

Here, it is undisputed that there is a written agreement to arbitrate the controversy.  The parties disagree about who will arbitrate the controversy.

Having fully and carefully reviewed the parties’ arguments and evidence, the court concludes that the separately signed “Addendum to Retail Installment Contract – Arbitration Venue” requires that the controversy be arbitrated by the American Arbitration Association [“AAA”].  That is the parties’ agreement.

The court cannot abrogate the parties’ agreement based upon speculative arguments about how other arbitration providers’ rules are “fairer” than the AAA’s.  Provider rules are not immutable and may be changed by the arbitrator to address any “fairness” concerns.  In the context of a Motion to Compel arbitration, the question of fairness is decided by whether the rules apply to both parties.  There has been no showing that the AAA rules are not applied to both sides.

To the extent that plaintiff’s argument encompasses unconscionability, the evidence does not support a finding of unconscionability.  Plaintiff’s declaration is lacking on the type of showing that would support a finding of procedural unconscionability.  And the terms of the Addendum are not so one-sided to shock the conscience.  [See Kinney v. United HealthCare Services, Inc. (1999) 70 Cal. App. 4^th 1322, 1329-1331] 

The court declines to rule on defendant’s objections to the Opposition Declarations of Michelle A. Cook, Gregory T. Babbitt, and Christopher P. Barry.  The testimony and evidence are immaterial to the court’s decision on this Motion.

Defendant’s objections to the Declaration of plaintiff Bianca are OVERRULED.

CMD’s request for an award of costs is DENIED.  Defendant is not a prevailing party for the purposes of CCP §1293.2 as the case is still pending, albeit in arbitration.  [See California Teachers Assn. v. Governing Board, 161 Cal. App. 3d 393 (1984) (party that successfully compelled arbitration was not the prevailing party at the arbitration and not entitled to costs, even though it successfully compelled arbitration). ]

The decision to order arbitration between plaintiff and CMD does not address the status of defendant Old Republic Surety (“ORS”).  It appears from the court record that ORS was served on January 25, 2023.  (ROA 11).  ORS has not answered, and plaintiff has not requested a default.

All parties are ordered to meet and confer within 10 days of this order regarding how the court will treat ORS while the arbitration proceeds between plaintiff and CMD.  The parties shall file either (1) a stipulation regarding ORS’s status during the arbitration; or (2) 5-page briefs in support of each parties’ request, which briefs will be filed simultaneously.  Any stipulation or briefs shall be filed on August 7, 2023 by noon.

A status conference will be conducted in C28 on August 11, 2023 at 9:00 a.m.

Defendant CMD shall give notice.