Judge: Yolanda Orozco, Case: 22STCV00242, Date: 2022-10-26 Tentative Ruling

Case Number: 22STCV00242    Hearing Date: October 26, 2022    Dept: 31

MOTION TO COMPEL ARBITRATION IS DENIED, WITHOUT PREJUDICE 

Background 

On January 04, 2022, Plaintiff Gabriel F. Herrera filed a Complaint against Defendant Nissan North America, Inc. and Does 1 to 10 for violations of the Song-Beverly Act and Fraudulent Inducement-Concealment. 

On February 10, 2022, Defendant Nissan filed an Answer. 

On September 28, 2022, Defendant Nissan filed this instant Motion Seeking to Compel Arbitration and Stay Proceedings. 

Plaintiff filed opposing papers on October 12, 2022. Defendant Nissan filed a reply on October 18, 2022. 

Legal Standard 

Parties may be compelled to arbitrate a dispute upon the court finding that: (1) there was a valid agreement to arbitrate between the parties; and (2) said agreement covers the controversy or controversies in the parties’ dispute.¿(Code Civ. Proc., § 1281.2; Omar v. Ralphs Grocery Co. (2004)¿118 Cal.App.4th 955, 961.) 

A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court¿(1998) 62 Cal.App.4th 348, 356-57.)  

“If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc., § 1281.4.) 

REQUEST FOR JUDICIAL NOTICE 

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code t § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) 

A. Plaintiff requests Judicial Notice of the following: 

·       Ngo v. BMW of N. Am., LLC (9th Cir. Jan. 12, 2022) 23 F.4th 942, a true and correct copy attached hereto as Exhibit A. 

·       Order denying defendant’s Motion to Compel Arbitration in the matter of Messih v. Mercedes-Benz USA, LLC (N.D.Cal., June 24, 2021) No. 21-cv-03032-WHO, 2021 WL 2588977, a true and correct copy attached hereto as Exhibit B. 

·       Order denying defendant’s Motion to Compel Arbitration in the matter of Safley v. BMW of N. Am. (S.D.Cal. Feb. 5, 2021) No. 20-cv-00366-BAS-MDD, 2021 WL 409722, a true and correct copy attached hereto as Exhibit C. 

·       Order denying defendant’s Motion to Compel Arbitration in the matter of Nation v. BMW of N. Am. (C.D.Cal. Dec. 28, 2020) No. 2:20-cv-02709-JWH (MAAx), 2020 WL 7868103, a true and correct copy attached hereto as Exhibit D. 

·       Order denying defendant’s Motion to Compel Arbitration in the matter of Ruderman v. Rolls Royce Motor Cars, LLC (C.D.Cal. Jan. 7, 2021) No. 2:20-cv-04529-JWH (RAOx), 2021 WL 141179, a true and correct copy attached hereto as Exhibit E. 

·       Order denying defendant’s Motion to Compel Arbitration in the matter of In re Ford Motor Co. DPS6 Powershift Transmission Products Liab. Litig, (C.D.Cal. 2020) 2020 WL 3637631, a true and correct copy attached hereto as Exhibit F. 

·       • Order denying defendant’s Motion to Compel Arbitration in the matter of In re Toyota Motor Corp. Hybrid Brake Mktg., Sales, Practices & Products Liab. Litig. (C.D.Cal. 2011) 2011 WL 13160304, a true and correct copy attached hereto as Exhibit G. 

·       Jarboe v. Hanlees Auto Group (2020) 53 Cal.App.5th 539, a true and correct copy of which is attached hereto as Exhibit H. 

·       Fuentes v. TMCSF, Inc. (2018) 26 Cal.App.5th 541, a true and correct copy of which is attached hereto as Exhibit I. 

·       Order denying defendant’s Motion to Compel Arbitration in the matter of Chen v. BMW of North America (N.D.Cal., Aug. 13, 2021) No. 21-cv-03531-DMR, 2021 WL 3604691, a true and correct copy is attached hereto as Exhibit J. 

Plaintiff’s Request for Judicial Notice is Granted. 

B. Defendant requests Judicial Notice of the following: 

·       Plaintiff Gabriel F. Herrera’s Complaint in this action, a true and correct copy of which is attached hereto as Exhibit 1.

·       Dismissal filed in Felisilda v. FCA on February 11, 2016, a true and correct copy of which is attached hereto as Exhibit 2. 

Defendant’s Request for Judicial Notice is GRANTED. 

Discussion 

Defendant Nissan moves to compel arbitration based on the “Retail Installment Sale Contract” (“Sales Contract”) Plaintiff signed when he purchased a new 2018 Nissan Frontier on August 11, 2022. Although Nissan was not a signatory to the Sales Contract, Nissan asserts it can compel arbitration under the doctrine of equitable estoppel and as a third-party beneficiary under the Arbitration Provision in the Sales Contract. (Rein Decl. Ex. 3.)

Existence of an Arbitration Agreement

The Arbitration Provision in question is part of the Sales Contract and Reads:

“Arbitration Provision

PLEASE REVIEW – IMPORTANT – AFFECTS YOUR LEGAL RIGHTS

1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.

2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.

3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.

Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your 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, at your or our election, be resolved by neutral, binding arbitration and not by a court action.”

(Rein Decl. Ex. 3 “Sales Contract” [bold and capitalization in original].)

Plaintiff also signed another provision in the Sales Contract agreeing to the Arbitration Provision in the Sales Contract that states:

“YOU AGREE TO THE TERMS OF THIS CONTRACT. YOU CONFIRM THAT BEFORE YOU SIGNED THIS CONTRACT, WE GAVE IT TO YOU, AND YOU WERE FREE TO TAKE IT AND REVIEW IT. YOU ACKNOWLEDGE THAT YOU HAVE READ ALL PAGES OF THE CONTRACT, INCLUDING THE ARBITRATION PROVISION ABOVE, BEFORE SIGNING BELOW. YOU CONFIRM THAT RECEIVED A COMPLETELY FILLED IN COPY WHEN YOU SIGNED IT.”

(Rein Decl. Ex. 3.)

Plaintiff does not dispute signing the Sales Contract or the Arbitration Provision but asserts that arbitration is not appropriate because Plaintiff’s claims against Nissan did not arise and are not a part of the Sales Contract. More importantly, Plaintiff objects to the Sales Contract on the bases that the alleged Sales Contract Plaintiff signed was not authenticated by a witness with personal knowledge.  (Evid. Code, § 1401, subd. (a).)

Nissan’s counsel only asserted that Exhibit 3 is “a true and correct copy of what I am informed and believe is the signed Retail Installment Sale Contract relating to Plaintiff Gabriel F. Herrera (“Plaintiff”) purchase of the 2018 Nissan Frontier at issue in this action.” (Rein Decl. ¶ 3.) Nissan’s counsel does not state who informed her that the Sales Contract attached as Exhibit 3 is the Sales Contract Plaintiff signed. There is no declaration by a custodian or person with personal knowledge that Sales Contract attached as Exhibit 3 is in fact the Sales Contract Plaintiff signed. (Evid. Code, § 1561, subd. (a).)

To establish a valid agreement to arbitrate disputes, “[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by [a] preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)

Since Defendant Nissan has failed to provide valid proof that an arbitration agreement exists between the parties, the Motion to Compel Arbitration is DENIED, without prejudice. 

Conclusion 

Defendant Nissan’s Motion to Compel Arbitration and Stay Proceedings is DENIED, without prejudice. 

Defendant to give notice.