Judge: Upinder S. Kalra, Case: 22STCV14223, Date: 2023-01-30 Tentative Ruling

Case Number: 22STCV14223    Hearing Date: January 30, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   January 30, 2023                                            

CASE NAME:           Karen Encisco Salvador, et al. v. Nissan North America, Inc.

CASE NO.:                22STCV14223

MOTION TO COMPEL ARBITRATION

MOVING PARTY: Defendant Nissan North America, Inc.

RESPONDING PARTY(S): Plaintiffs Karen Enciso Salvador and Salvador Salvador Guevara

REQUESTED RELIEF:

1.      An order compelling arbitration

2.      An order staying the proceedings

TENTATIVE RULING:

1.      Motion to Compel Arbitration is DENIED WITHOUT PREJUDICE OR CONTINUED.

2.      Motion for a Stay of the Proceedings is DENIED WITHOUT PREJUDICE OR CONTINUED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On April 28, 2022, Plaintiffs Karen Enciso Salvador and Salvador Salvador Guevara (“Plaintiffs”) filed a complaint against Defendant Nissan North America (“Defendant.”) The complaint alleged two violations for breach of an express and an implied warranty under both the Song-Beverly Act. Plaintiffs alleged that they entered into a warranty contract with Defendant for the Subject Vehicle. During that warranty period, the Subject Vehicle presented nonconformities and defects, which substantially impaired the use of the Vehicle.

On June 6, 2022, Defendant filed an Answer.

On September 9, 2022, Defendant filed the current Motion to Compel Arbitration. Plaintiffs’ Opposition was filed on January 17, 2023. Defendant’s Reply was filed on January 23, 2023.

LEGAL STANDARD:

Motion to Compel Arbitration – Under California law, the trial court has authority to compel arbitration pursuant to Code Civ. Proc. §1281.2 where a written agreement for such arbitration exists and one of the parties refuses to arbitrate.  Specifically, the statute provides that, “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement arbitrate the controversy exists.”  The statute further sets forth four grounds upon which the trial court may refuse to compel arbitration: (a) the right to compel arbitration was waived, (b) recission of the agreement, (c) there is a pending action or special proceeding with a third party, arising out of the same transaction; and (d) petitioner is a state or federally chartered depository institution.

“[T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . .”  Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284.  “In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.”  Weeks v. Crow (1980) 113 Cal.App.3d 350, 353.  “To determine whether a contractual arbitration clause requires arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause.”  Titolo v. Cano (2007) 157 Cal.App.4th 310, 316.  “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.”  California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198, 205.   

“[A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.”  Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284. 

Judicial Notice:

Defendant requests the Court to take judicial notice of the following documents:

1.      Complaint for Damages, filed in Los Angeles County Superior Court by Plaintiffs Karen Enciso Salvador aka Karen Enciso and Salvador Salvador Guevara on April 28, 2022, in the matter of Karen Enciso Salvador aka Karen Enciso and Salvador Salvador Guevara v. Nissan North America, Inc., et al. (Case No. 22STCV14223)

2.      Notice of Entry of Dismissal and Proof of Service, filed in Sacramento Superior Court by Plaintiffs Dina C. Felisilda and Pastor O. Felisilda on February 11, 2016 in the matter of Dina C. Felisilda, et al, v. FCA US LLC, et al. (34-2015-00183668)

3.      Answer to Plaintiff’s Complaint, filed in Los Angeles County Superior Court by Nissan on June 6, 2022, in the matter of Karen Enciso Salvador aka Karen Enciso and Salvador Salvador Guevara v. Nissan North America, Inc., et al. (Case No. 22STCV14223)

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565). As a result, although the court may take judicial notice that the documents exists, the Court may not take judicial notice of the truth of the facts in the documents.

            Additionally, Evidence Code only allows the Court to take judicial notice of certain types of documents. The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) The Evidence Code does not allow the Court to take judicial notice of discovery responses or parts of cases, such as depositions.

The request for judicial notice is GRANTED, as the documents are court documents under Evid. Code § 452(d).

Evidentiary Objections:

Plaintiff’s Objections: Jason M. Richardson Declaration:

Sustained: 1-4

Overruled:

ANALYSIS:

Defendant moves to compel Plaintiff to arbitration.

As the moving party, Defendant bears the initial burden of establishing the existence of a valid arbitration agreement.  Id. Upon establishing the existence of such an agreement, the burden shifts to the Plaintiff to prove that there are valid grounds for contesting arbitration by a preponderance of the evidence.  Id.

A.     Existence of Arbitration Agreement:

In determining the enforceability of an arbitration agreement, the court considers “two ‘gateway issues’ of arbitrability: (1) whether there was an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue.”  (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961 (Omar).)   

1.      Agreement Between Parties:

“Arbitration is a product of contract.  Parties are not required to arbitrate their disagreements unless they have agreed to do so.  [Citation.]  A contract to arbitrate will not be inferred absent a ‘clear agreement.’  [Citation.]  When determining whether a valid contract to arbitrate exists, we apply ordinary state law principles that govern contract formation.  [Citation.]  In California, a ‘clear agreement’ to arbitrate may be either express or implied in fact.  [Citation.]”  (Davis v. Nordstrom, Inc. (9th Cir. 2014) 755 F.3d 1089, 1092-1093 (Davis).)   

In support of its motion, Defendant submits a copy of the Retail Installment Sale Contract, attached to the Declaration of Jason Richardson as Exhibit 1.

              However, as Plaintiff argues, the Court finds that Defendant has failed to meet its burden. The Retail Installment Sale Contract is attached to Jason’s Richardson’s declaration. However, Jason Richardson is Defendant’s attorney and does not have knowledge pertaining to this document. It has not been properly authenticated; there is no declaration from a custodian of records or an individual who worked for Defendant Nissan establishing that this Agreement is of the type that is used when a car is purchased and was used when Plaintiffs purchased the subject vehicle. As above, the Court sustained Plaintiffs’ objections, which concerned Defendant’s counsel’s declaration. Thus, Defendant has failed to establish the existence of an arbitration agreement. However, if  Exhibit 1 can be properly authenticated, then Defendant has met its threshold showing of the existence of an arbitration agreement. Accordingly, the Court will exercise its discretion to give Defendant a reasonable opportunity to cure these evidentiary objections.

              Motion to Compel Arbitration is DENIED WITHOUT PREJUDICE OR CONTINUED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

              Motion to Compel Arbitration is DENIED WITHOUT PREJUDICE OR CONTINUED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             January 30, 2023                     __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court