Case Number: *******0529 Hearing Date: February 24, 2023 Dept: D
Case No. 22 GDCV00529 Trial Date: None Set
Case Name: Vera v. Nissan North America, Inc., et al.
MOTIONS TO COMPEL ARBITRATION (2)
Moving Party: Defendant Nissan North America, Inc.
Defendant Promenade Imports, LLC dba Glendale Infiniti
Responding Party: Plaintiff Mabel S. Vera
Order compelling arbitration of this action and staying this action during the pendency of arbitration
SUMMARY OF FACTS:
Plaintiff Mabel S. Vera alleges that in May of 2021 plaintiff leased a 2021 Infiniti QX50 vehicle from an authorized dealer and agent of defendant Nissan North America, Inc., the manufacturer of the vehicle, and that the subject vehicle was leased to plaintiff with express warranties that the vehicle would be free from defects in materials, nonconformities, or workmanship during the applicable warranty period and to the extent the subject vehicles had defects, defendant Nissan would repair the defects.
Plaintiff alleges that beginning in August of 2021, plaintiff returned the subject vehicle to defendant for repairs under the applicable warranties because the vehicle exhibited defects, nonconformities, maladjustments, or malfunction relating to the rear collision light turning on at times, the intelligent brake assist light turning on at times, and sonar control unit issues. Subsequently, the vehicle exhibited further defect, including front collision lights turning on intermittently, doors failing to lock or unlock with the key fob or interior switches, problems with the left and right rear door actuators, and freezing of the top screen.
Plaintiff alleges that defendant has failed to make the subject vehicle conform to the applicable warranties, despite being permitted a reasonable number of attempts to do so, and that defendant is unable or unwilling to make the vehicle conform to the warranties.
The complaint alleges that plaintiff delivered the subject vehicle to defendant Promenade Imports, LLC dba Glendale Infiniti for repair and that defendant Glendale Infiniti negligently performed the services of storing, preparing, and repairing the vehicle in accordance with industry standards, and also breached its duty to record and describe all work on the invoice given to plaintiff, proximately causing plaintiff damages.
The complaint alleges causes of action for violation of Song-Beverly Act—breach of express warranty, violation of Song-Beverly Act—breach of implied warranty, violation of Song-Beverly Act—section 1793.2, and negligent repair.
Defendants Nissan North America, Inc. (Nissan) and Promenade Imports, LLC dba Glendale Infiniti (Glendale Infiniti) each bring a motion seeking an order compelling plaintiff to arbitrate this matter with each defendant.
CCP 1281.2 , governing orders to arbitrate controversies, provides, in pertinent part:
“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:
(a) The right to compel arbitration has been waived by the petitioner; or
(b) Grounds exist for rescission of the agreement.”
Under the Federal Arbitration Act, arbitration agreements “shall be valid, irrevocable and enforceable, save upon such grounds that exist at law or in equity for the revocation of a contract.” 9 U.S.C. section 2.
There is a strong public policy in favor of arbitration of disputes and any doubts concerning the scope of arbitrable disputes should be resolved in favor of arbitration. Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (“courts will ‘indulge every intendment to give effect to such proceedings.’”) (quotation omitted). “[A]rbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question.” Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189, quoting Weeks v. Crow (1980) 113 Cal.App.3d 350, 353. See also AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333, 339.
In this case, defendants have submitted a copy of a Motor Vehicle Lease Agreement between Infiniti of Valencia as Lessor, and Mabel S. Vera as Lessee. [Ihara Decl., para. 3, Ex. B]. This Agreement includes an Arbitration Clause at paragraph 31. [Ex. B, para. 31]. Infiniti of Valencia, the dealer who leased the vehicle to plaintiff, has not been named as a party to this action. Glendale Infiniti is a separate Infiniti dealer which provided repair services to plaintiff.
Plaintiff has filed objections to the Ihara Declarations submitting this document and to consideration of this document, as the declarant, Karyn Ihara, attests she is the attorney of record for defendants, and, although she indicates that the facts set forth are of the attorney’s “own personal knowledge,” there are no facts set forth to show how this declarant would in fact have sufficient personal knowledge to declare that Exhibit B is a true and correct copy of “the Retail Installment Sale Contract for the lease” of the subject vehicle. [Ihara Decl., paras. 1, 3]. In fact, the declarations misidentify the attached Motor Vehicle Lease Agreement as a Retail Installment Sale Contract. [Compare Ihara Decl., para. 3 to Exhibit B]. It does not appear that the attorney for defendants would have personal knowledge sufficient to authenticate the document.
Under Evidence Code 1401(a): “Authentication of a writing is required before it may be received into evidence.” Under Evidence Code section 1400:
“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.”
Under Evidence Code section 702 (a), except for in connection with expert witness opinion testimony, “the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against a party’s objection, such personal knowledge must be shown before the witness may testify concerning the matter.”
No such authentication or personal knowledge has been established here, and the objections are valid on these grounds.
In addition, the document submitted under counsel’s declaration appears to constitute hearsay without any qualified witness establishing a business records exception.
Under CRC Rule 3.1330, with respect to motions concerning arbitration:
“A petition to compel arbitration or stay proceedings pursuant to Code of Civil Procedure section 1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be attached to the petition and incorporated by reference.”
In general, the party seeking arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence. Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230:
“In determining whether an enforceable arbitration agreement exists, the initial burden is on the party petitioning to compel arbitration. “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 413; see Engalla v. Permanente Medical Group (1997) 15 Cal.4th 951, 972 [64 Cal. Rptr. 2d 843, 938 P.2d 903].) Once the petitioner has met that burden, the burden shifts to the party opposing arbitration, to “produc[e] evidence of, and prov[e] by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 413”
Villacreses, at 1230.
The moving papers concede that under federal law as well, the moving party to compel enforcement of an arbitration agreement bears the burden of establishing the existence of a valid agreement to arbitrate and that the agreement encompasses the dispute at issue, while the opposing party bears the party of establishing any defenses to enforceability. Sanfilippo v. Tinder, Inc. (C.D. Cal. 2018) 2018 WL 6681197, *2.
Here, the objections to the declarations and consideration of the attached document are sustained, and defendants have failed to prove, either by admissible evidence, or by a preponderance of the evidence, the existence of a valid arbitration agreement.
Defendants have accordingly failed to meet their initial burden sufficient to shift the burden to the party opposing arbitration to produce evidence of facts necessary to a defense. The motions are denied on this ground.
In the event the court were to consider the Motor Vehicle Lease Agreement, the motions would also be denied on their merits.
The arbitration clause set forth in the Motor Vehicle Lease Agreement provides, in pertinent part:
“31. ARBITRATION CLAUSE—IMPORTANT—PLEASE REVIEW—AFFECTS YOUR LEGAL RIGHTS
1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE, EXCEPT AS STATED BELOW, BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL….
Except as otherwise stated below, any claim or dispute, whether in contract, tort, statute, or otherwise (including the interpretation and scope of this clause 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, lease or condition of this vehicle, this lease agreement or any resulting transaction or relationship (including any such relationship with third parties who do not sign this lease) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action.”
[Ihara Decl., para. 3, Ex. 2, Motor Vehicle Lease Agreement, Ex. B, p. 4 of 5, para. 31, emphasis in original].
As noted above, the parties and signatories to this Lease are the Lessor, Infiniti of Valencia, and the Lessee, Mabel S. Vera. Moving defendants are not named as parties to this Lease and did not sign it. [See Ex. B].
Defendants concede that they are non-signatories to the Lease.
Both defendants argue that while defendants Nissan and Glendale Infiniti did not sign the Lease, both defendants may enforce arbitration under the doctrine of equitable estoppel because plaintiff’s claims against both defendants rely on and are inextricably intertwined with the Lease.
Defendant Nissan also argues that this defendant is nevertheless entitled to enforce the arbitration provision as a third-party beneficiary because the arbitration provision expressly encompasses claims arising out of relationships with third parties who did not sign the Lease, and Nissan bears a close relationship to the signatories.
Defendant Glendale Infiniti also argues that compelling arbitration here would be in the interest of judicial efficiency and economy.
With respect to the argument by defendants that they are each entitled to enforce the arbitration provision based on equitable estoppel, in Boucher v. Alliance Title Co. (2005) 127 Cal.App.4th 262 the Second District found that a non-signatory defendant could invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims “when the causes of action against the non-signatory are ‘intimately founded in and intertwined’ with the underlying contract obligations.” Boucher, at 272.
Defendants cite to Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, in which the court of appeal reversed an order denying a motion to compel arbitration, observing with respect to equitable estoppel in such a context:
“Equitable estoppel precludes a party from asserting rights 'he otherwise would have had against another' when his own conduct renders assertion of those rights contrary to equity." (Schwabedissen, supra, 206 F.3d at pp. 417–418.) In the arbitration context, a party who has not signed a contract containing an arbitration clause may nonetheless be compelled to arbitrate when he seeks enforcement of other provisions of the same contract that benefit him. (Id. at p. 418; NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 81 [100 Cal. Rptr. 2d 683] (NORCAL).)
Metalclad, at 1713.
Defendants argue they can compel plaintiff to arbitrate the claims in the complaint based on equitable estoppel, relying on Felisilda v. FCA US LLC (2000) 53 Cal.App.5th 486, in which the court of appeal found that the trial court had not erred in granting a motion to compel arbitration of a Song-Beverly Act claim which plaintiffs had filed against both the dealer who had sold them the subject vehicle and the vehicle manufacturer who had undertaken express warranties concerning the utility and performance of the vehicle. The court of appeal found that the arbitration provision in that case supported the trial court’s order despite plaintiffs’ argument that the manufacturer was not a signatory to the sales contract.
Defendants argue that the court in Felisilda addressed an arbitration provision in a vehicle sales contract which allowed arbitration of “any claim or dispute, whether in contract, tort, statute or otherwise…which arises out of or relates to…the 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.”
The sales contract in Felisilda case included language similar to the language in the Lease in this case, including the language quoted above.
The court of appeal found that in the circumstances before it, in which the signatory dealership had moved to compel arbitration of the entire action and the manufacturer did not oppose that motion, the trial court had correctly ordered that the entire matter be submitted to arbitration, noting that:
“Based on language in the sales contract and the nature of the Felisildas’ claim against FCA, we conclude the trial court correctly ordered that the entire matter be submitted to arbitration. In signing the sales contract, the Felisildas agreed that “[a]ny claim or dispute, whether in contract, tort, statute or otherwise ... between you and us ... which arises out of or relates to ... [the] condition of this vehicle ... shall ... be resolved by neutral, binding arbitration and not by a court action.” (Italics added.) Here, the Felisildas’ claim against FCA relates directly to the condition of the vehicle.”
Felisilda, at 496, italics in original.
The court of appeal concluded that this language and the express mention of third-party non-signatories in the arbitration provision supported the trial court’s order.
Plaintiff points out that the case here is distinguishable from Felisilda on the ground there is no involvement of the dealership, and no claims are brought jointly against the manufacturer and the dealership. Instead, plaintiff here seeks to enforce the warranties owed by the manufacturer independently of the rights and duties set forth under the Lease. As noted above and argued in the oppositions, in Felisilda, the dealer defendant from which the vehicle was obtained moved to compel arbitration, falling squarely within the parties defined in the Lease with standing to compel arbitration, that is, “YOU,” the lessee, or “US,” defined as the Lessor. The dealer was the lessor in that case, but there has been no motion to compel arbitration by the dealer which is the lessor here. The only dealer in this matter is one independent of the lessor, which provided repair services.
Defendants argue that plaintiff’s claims here are inextricably intertwined with the Lease because the express warranty is an additional term of the Lease that imposes obligations on Nissan and plaintiff alleges violation of those obligations.
Plaintiff points out that the complaint here does not rely on any provision of the Lease, does not attach the Lease as a document providing actionable rights, but relies on and attaches the separately issued warranty from the manufacturer. Plaintiff also cites to numerous cases which have cited Felisilda since its ruling which have found that the reasoning of Felisilda did not apply where the signatory dealership was not part of the action. See Ruderman v. Rolls Royce Motor Cars, LLC (C.D.Cal. 2021) 511 F.Supp.3d 1055, 1060; Safley v. BMW of North America, LLC (S.D.Cal., Feb. 5, 2021) 2021 WL 409722, at 7-8; Ellington v. Eclipse Recreational Vehicles, Inc. (C.D.Cal. 2020) 2020 WL 8073607, at 3-4; Nation v. BMW of North America, LLC (C.D.Cal. 2020) 2020 WL 7868103, at 4.
Plaintiff also notes that the Ninth Circuit has recently distinguished Felisilda on this ground in reversing the district court’s granting of a manufacturer’s motion to compel arbitration:
“The plaintiffs in Felisilda purchased a used 2011 Dodge Grand Caravan from the Elk Grove Dodge dealership and signed a purchase agreement containing an arbitration provision that was virtually identical to the one Ngo signed. See id. After discovering “serious defects” with the car, the Felisildas sued both the dealership and the manufacturer. Id. at 491, 266 Cal.Rptr.3d 640. The dealership moved to compel arbitration. Id. at 489, 266 Cal.Rptr.3d 640. After the manufacturer filed a notice of non-opposition, the trial court compelled arbitration. Id. at 491, 266 Cal.Rptr.3d 640. The Felisildas then dismissed the dealership, and the district court ordered it to arbitrate with the manufacturer alone. Id. at 499, 266 Cal.Rptr.3d 640. The California Court of Appeal affirmed. Id.
It makes a critical difference that the Felisildas, unlike Ngo, sued the dealership in addition to the manufacturer. In Felisilda, it was the dealership—a signatory to the purchase agreement—that moved to compel arbitration rather than the non-signatory manufacturer. See id. at 489, 266 Cal.Rptr.3d 640 (“Relying on the retail installment sales contract ... signed by the Felisildas, Elk Grove Dodge moved to compel arbitration.”). Furthermore, the Felisildas dismissed the dealership only after the court granted the motion to compel arbitration. Accordingly, Felisilda does not address the situation we are confronted with here, where the non-signatory manufacturer attempted to compel arbitration on its own. We therefore decline to affirm on the ground of equitable estoppel.
Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942, 950, italics in the original.
In this case, it is clear that the signatory dealership is not named or pursued in this action, and is not seeking to compel arbitration, but the motions are brought by the manufacturer alone and a nonsignatory dealership alone without implicating other parties. The distinction also applies here to justify denying the motions.
Plaintiff also argues that the vehicle warranty claims are not rooted in the Lease, in reliance on Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1122, which had been distinguished in Felisilda, above.
Plaintiff relies on analysis in Kramer pursuant to which the Ninth Circuit determined that plaintiffs’ vehicle warranty claims were not intertwined with the underlying purchase agreements. Kramer, at 1131-1132. The Ninth Circuit noted:
“Here, Plaintiffs' claims are premised on California consumer law, unfair competition, false advertising, breach of the implied warranty of merchantability, and breach of contract. In order for Toyota's equitable estoppel argument to succeed, Plaintiffs' claims themselves must intimately rely on the existence of the Purchase Agreements, not merely reference them. Toyota is correct that Plaintiffs' claims presume a transaction involving a purchase of a Class Vehicle. The claims do not, however, rely upon the existence of a Purchase Agreement. For illustration, a consumer who purchased a vehicle with cash instead of credit would still state a claim for which relief could be granted, absent a Purchase Agreement.
Kramer, at 1132.
Similarly, in this case, plaintiff’s claims are not rooted in the Lease, there is no reliance on any contract terms from the Lease in the claims against defendants Nissan or Glendale Infiniti, and all of plaintiff’s claims would be the same had plaintiff not leased the vehicle, but obtained it in some other manner. The complaint attaches the stand-alone warranty issued by Nissan as the basis for the Song-Beverly claims against Nissan, and brings no Song-Beverly claims at all against Glendale Infiniti, bringing only a negligent repair claim, which is based on a completely separate duty on the part of that party to exercise due care and comply with industry standards in the repair of the vehicle. [See Complaint].
Overall, considering the underlying basis of the equitable indemnity doctrine, as emphasized in Metalclad, above, upon which defendants rely, this does not appear to be a case where plaintiff’s own conduct renders assertion of plaintiff’s rights contrary to equity, that is where plaintiff is seeking enforcement of other provisions of the same contract that benefit him. See Metalclad, quoted above, at 1713.
This situation is not a case where plaintiff is seeking to simultaneously invoke the duties and obligations of any defendant under the Lease while simultaniously seeking to avoid the arbitration provision of that Lease.
Tellingly, there has been no connection whatsoever established with respect to defendant Glendale Infiniti, a dealership distinct from the dealership, which was the party to the Lease, who performed allegedly negligent repair services.
The motion to compel arbitration on this ground accordingly is denied.
Defendant Nissan makes arguments that other trial courts of district courts have analyzed the same arbitration provision in other cases involving other plaintiffs, and found the arbitration provision to apply to manufacturer defendants, arguing collateral estoppel applies, and requesting judicial notice of various court records in those other cases. These arguments do not meet defendant’s burden of establishing that collateral estoppel would apply here, particularly that the parties to the previous action are the same or in privity and are not based on evidentiary matter establishing any of the matters argued, given that this court may not judicially notice the truth of hearsay matters included in the material submitted from other court records, except in limited circumstances. See Evidence Code 452 (d); Day v. Sharp (1975) 50 Cal.App.3d 904, 914. In addition to issues of hearsay, it is held that a litigant “should not be bound by the court’s inclusion in a court order of an assertion of fact that the litigant has not had the opportunity to contest or dispute.” Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882. These arguments do not sufficiently establish that this court is collaterally estopped in this matter from determining that the arbitration provision in this case has not been sufficiently established to be enforceable.
Defendant Nissan also argues that it may compel arbitration as a third party beneficiary of the Lease pursuant to the plain language of the lease, which includes a reference to any “claim or dispute…which arises out of or relates to… any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract)…” [Ex. 2, p. 4].
With respect to third party beneficiary status, the California Supreme Court has set forth the following test for determining if a party may be recognized as a third-party beneficiary:
‘[A] review of this court's third party beneficiary decisions reveals that our court has carefully examined the express provisions of the contract at issue, as well as all of the relevant circumstances under which the contract was agreed to, in order to determine not only (1) whether the third party would in fact benefit from the contract, but also (2) whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and (3) whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties. All three elements must be satisfied to permit the third party action to go forward.”
Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 829-830.
Defendant Nissan does not set forth the applicable legal standard but argues that the language above and the contentions arising from the warranty from the manufacturer show that plaintiff must contend that Nissan benefited from the Lease, and that permitting Nissan to enforce the arbitration is consistent with the objectives of the Lease and the reasonable expectations of plaintiff and the selling dealership. The Nissan motion does not cite to any case authority on this issue, other than Felisilda, discussed above, which has been since distinguished as involving the signatory dealer pursuing the arbitration order. Defendant Nissan submits no factual showing establishing, for example, that Nissan has any particular relationship with the Lessor, Infiniti of Valencia, which would establish that Nissan would fall within the expressly delineated parties entitled to invoke the arbitration, specifically “us or our employees, agents, successors or assigns…” [Ex. 2, para. 31]. There is no evidence offered that Nissan enjoys such a relationship with the dealership Lessor defined as “us” in the Lease, or any evidence whatsoever on this point. To the extent Nissan were to in fact submit evidence showing that it is, for example, the parent company of the dealership, this is the type of relationship not included in “employees, agents, successor or assigns,” and which could have been expressly included if intended, and the lack of the term “parent companies,” appears to indicate an intent not to include such parent companies, such as defendant Nissan, which would have been a party known to the parties at the time the Lease was entered into.
Plaintiff relies on Safley v. BMW of North America, LLC (2021 USDC S.D. Cal.) 2021 WL 409722, a federal district court case, which is not binding on this court, but which addressed and denied a motion to compel arbitration by a manufacturer warrantor defendant, interpreting the same language in a Retail Installment Sale Contract with a dealership, which in that case had assigned its rights, but neither the dealership nor its assignee had been named a party to the action.
The federal district court in Safley persuasively observed that the subject provision did not sufficiently afford BMW status as a third-party beneficiary:
“The provision covers claims “between you [the Safleys] and us [BMW Encinitas] or our employees, agents, successors, or assigns....” (Sale Contract 2.) The provision also states that a covered dispute “shall, at your [the Safleys’] or our [BMW Encinitas's] election, be resolved by neutral, binding arbitration.” (Id.)
The Court is unconvinced that this narrower contract covers Defendant as a third-party beneficiary. Defendant does not demonstrate that it falls under one of the categories of third parties identified in the arbitration provision's claim coverage: the dealership's “employees, agents, successors, or assigns.” BMW Bank of North America—not Defendant—is the assignee and successor to the dealership's rights and responsibilities under the Sale Contract. And although Defendant may be the parent company of BMW FS, which in turn is apparently the parent company of BMW Bank of North America, these are all separate legal entities. “[C]orporation law is largely built on the idea that the separate legal existence of corporate entities should be respected—even when those separate corporate entities are under common ownership and control.” Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1038 (Del. Ch. 2006) (Strine, V.C.).
Therefore, without broader language like “parents” or “affiliates” in the arbitration clause, Defendant's argument that it “falls within the class of persons (i.e., assigns) whom the Arbitration Provision was intended to benefit” is unpersuasive.”
Safley, at 5-6.
Here, there is not even minimal evidence offered concerning Nissan’s status with respect to the Lessor dealership Infiniti of Valencia, and, in any case, a similar analysis concerning the separateness of corporate entities would apply. Overall, defendant Nissan has failed to establish that it is a third party beneficiary of the subject agreement entitled to enforce the arbitration provision.
The motion accordingly is denied even if the court were to consider this matter on its merits. The court in fact has considered the matter on its merits.
Defendant Glendale Infiniti makes a brief argument, without citing any legal authority, that the court should compel the action against Glendale Infiniti into arbitration, in “the interest of judicial efficiency and economy.” Defendant argues that plaintiff’s claims, which all arise from the same nexus of facts, the lease of, and warranty repairs to, the subject vehicle, should be heard simultaneously, in the same forum and before the same finder of fact, and that there will be no prejudice to plaintiff because there will be no possibility of divergent results in different forums. Since the Nissan motion is denied, and the matters will all be heard together in this forum, Glendale Infiniti’s argument does not establish any reason for compelling plaintiff to arbitrate its claims against Glendale Infiniti.
The Glendale Infiniti motion also is denied in its entirety because the court has considered this matter de facto on its merits.
Motion of Defendant Nissan North America, Inc. to Compel Arbitration and Stay Proceedings is DENIED.
Plaintiff’s Evidentiary Objections to the Declaration of Karyn L. Ihara are SUSTAINED.
Plaintiff’s Request for Judicial Notice is GRANTED only to the extent permitted by law. See Evidence Code 452 (d); Day v. Sharp (1975) 50 Cal.App.3d 904, 914; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.
Motion of Defendant Promenade Imports, LLC dba Glendale Infiniti, to Compel Arbitration and Stay Proceedings is DENIED.
Plaintiff’s Evidentiary Objections to the Declaration of Karyn L. Ihara are SUSTAINED.
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
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