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LEWIS BRISBOIS BISGAARD & SMITH LLP
RYAN MARDEN, SB# 217709 Q!
E-Mail: Ryan.Marden@lewisbrisbois.com i L
SUPERIOR COURT§F CDALIFORNIA
EDGARD J SALINAS, SB# 333965 COUNTY OF SAN ERNARDINO
E- Mail: Edgard. Salinas@lewisbrisbois. com SAN E‘ERNARDINBO DISTRICT
633 West 5th Street, Suite 4000
Los Angeles, California 90071 23E!) 1
3 ZHZZ
Telephone: 213.250.1800
..
Facsimile: 213.250.7900 .V
BY '
”flamuo'négyé%-a;
Attorneys for Defendant NISSAN NORTH ,
;
AMERICA, ONTARIO NIS SAN,
INC. and INC.
d/b/a METRO NISSAN OF MONTCLAIR
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO, SAN BERNARDINO DISTRICT
10
11 KATHERINE HERNANDEZ, an individual, Case No. CIVSB2206030
VIOLETA DEL CARMEN HERNANDEZ, an
12 individual, [AssignedforAll Purposes t0:
Hon. Thomas S. Garza, Dept. SZ 7]
13 Plaintiffs,
NOTICE OF MOTION AND MOTION OF
14 vs. DEFENDANTS NISSAN NORTH
AMERICA, INC. AND ONTARIO NISSAN
15 NISSAN NORTH AMERICA, INC., a D/B/A METRO NISSAN OF
California Corporation; ONTARIO NISSAN, MONTCLAIR’S TO COMPEL
16 INC. d/b/a METRO
NISSAN OF ARBITRATION AND STAY
MONTCLAIR, a California Corporation; and PROCEEDINGS; MEMORANDUM OF
17 DOES 1 through 20, inclusive, POINTS AND AUTHORITIES
18 Defendants. [Filed Concurrently with Declaration 0f
Edgard J. Salinas and Proposed Order]
19
Date: April 27, 2023
20 Time: 8:30 am.
Dept: $27
21
Action Filed: March 16, 2022
22 Trial Date: None Set
23 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
24 PLEASE TAKE NOTICE that, on April 27, 2023 at 8:30 a.m., or as soon thereafter as the
25 matter may be heard in Department 827 of the above-captioned court, located at 247 West Third
26 Street, San Bernardino, CA 92415, Nissan North America, Inc. (“Nissan”) and Ontario Nissan, Inc.
27 d/b/a Metro Nissan of Montclair (“Metro Nissan”) (collectively “Defendants”) will, and hereby d0,
28
mgsigflgp commenced by Plaégggffsolgflfigfim
order compelling arbitration of thif action
BRISBOIS NOTICE OF MOTION AND MOTION OF DEFENDANTS NISSAN NORTH AMERICA, INC. AND ONTARIO
BISGAARD
S(WIIH LLP NISSAN D/B/A METRO NISSAN OF MONTCLAIR’S TO COMPEL ARBITRATION AND STAY
AWORNEYS AT LAW
PROCEEDINGS; MEMORANDUM OF POINTS AND AUTHORITIES
HERNANDEZ and VIOLETA DEL CARMEN HERNANDEZ (“Plaintiffs”), and staying this
action during the pendency of that arbitration.
Specifically, Defendants move to compel Plaintiffs’ claims related to their vehicle into
hWN
arbitration pursuant to the Retail Installment Sale Contract (“RISC”) they entered into when they
purchased the vehicle.
Defendants can compel this action into arbitration for three primary reasons:
COOQONUI
The RISC contains a valid and enforceable arbitration provision executed by Plaintiffs and
defendant Metro Nissan;
Defendant Nissan may enforce the Arbitration Provision pursuant to the doctrine of equitable
estoppel. As the California Court of Appeal recently held in Felisz'lda v. FCA US LLC (2020) 53
10
Ca1.App.5th 486, 496-499, review denied (Nov. 24, 2020), equitable estoppel prevents plaintiffs
11
from avoiding their obligations t0 arbitrate Where, as here, their claims are intimatelyfounded in,
12
and intertwined with, their RISC and the purchase and the condition of their vehicle. Indeed,
13
Plaintiffs’ claims are all based on alleged defects and nonconformities With the subject vehicle and
14
NNA’s alleged failure to conform the subject vehicle to warranty; and
15
As a third-party beneficiary, Nissan may enforce the Arbitration Provision because it
16
expressly encompasses claims arising out 0f relationships with third parties who do not sign the
17
RISC, and Nissan bears a close relationship with the signatories.
18
If the Court finds the Arbitration Provision is valid and Defendants have standing to enforce
19
it, then it must defer any questions of arbitrability t0 the arbitrator. Further, if the Court agrees that
20
Defendants may compel arbitration, the FAA requires that this matter be stayed during the pendency
21
of the arbitration proceedings.
22
Defendants bring this motion pursuant to Code 0f Civil Procedure section 1281, et seq., the
23
Federal Arbitration Act, 9 U.S.C. § 2, and other applicable statutes and laws on the grounds that
24
Plaintiffs are bound by a valid, written agreement to arbitrate the subject matter of the Complaint.
25
Code Civ. Proc. § 128 1 .2. Defendants further move to stay this proceeding during the pendency of
26
the arbitration pursuant to Code 0f Civil Procedure section 1281.4 which expressly provides that
27
further proceedings “shall” be stayed “until an arbitration is had.”
28
LEWIS 4880—6535—1743.1 2 Case No. CIVSB2206030
BRISBOIS
NOTICE OF MOTION AND MOTION OF DEFENDANTS NISSAN NORTH AMERICA, INC. AND ONTARIO
BISGAARD
& SMIH Lu> NISSAN D/B/A METRO NISSAN OF MONTCLAIR’S TO COMPEL ARBITRATION AND STAY
AWORNEYS A1 LAW
PROCEEDINGS; MEMORANDUM OF POINTS AND AUTHORITIES
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LEWIS BRISBOIS BISGAARD & SMITH LLP RYAN MARDEN, SB# 217709 Q! E-Mail: Ryan.Marden@lewisbrisbois.com i L SUPERIOR COURT§F CDALIFORNIA EDGARD J SALINAS, SB# 333965 COUNTY OF SAN ERNARDINO E- Mail: Edgard. Salinas@lewisbrisbois. com SAN E‘ERNARDINBO DISTRICT 633 West 5th Street, Suite 4000 Los Angeles, California 90071 23E!) 1 3 ZHZZ Telephone: 213.250.1800 .. Facsimile: 213.250.7900 .V BY ' ”flamuo'négyé%-a; Attorneys for Defendant NISSAN NORTH , ; AMERICA, ONTARIO NIS SAN, INC. and INC. d/b/a METRO NISSAN OF MONTCLAIR SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO, SAN BERNARDINO DISTRICT 10 11 KATHERINE HERNANDEZ, an individual, Case No. CIVSB2206030 VIOLETA DEL CARMEN HERNANDEZ, an 12 individual, [AssignedforAll Purposes t0: Hon. Thomas S. Garza, Dept. SZ 7] 13 Plaintiffs, NOTICE OF MOTION AND MOTION OF 14 vs. DEFENDANTS NISSAN NORTH AMERICA, INC. AND ONTARIO NISSAN 15 NISSAN NORTH AMERICA, INC., a D/B/A METRO NISSAN OF California Corporation; ONTARIO NISSAN, MONTCLAIR’S TO COMPEL 16 INC. d/b/a METRO NISSAN OF ARBITRATION AND STAY MONTCLAIR, a California Corporation; and PROCEEDINGS; MEMORANDUM OF 17 DOES 1 through 20, inclusive, POINTS AND AUTHORITIES 18 Defendants. [Filed Concurrently with Declaration 0f Edgard J. Salinas and Proposed Order] 19 Date: April 27, 2023 20 Time: 8:30 am. Dept: $27 21 Action Filed: March 16, 2022 22 Trial Date: None Set 23 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 24 PLEASE TAKE NOTICE that, on April 27, 2023 at 8:30 a.m., or as soon thereafter as the 25 matter may be heard in Department 827 of the above-captioned court, located at 247 West Third 26 Street, San Bernardino, CA 92415, Nissan North America, Inc. (“Nissan”) and Ontario Nissan, Inc. 27 d/b/a Metro Nissan of Montclair (“Metro Nissan”) (collectively “Defendants”) will, and hereby d0, 28 mgsigflgp commenced by Plaégggffsolgflfigfim order compelling arbitration of thif action BRISBOIS NOTICE OF MOTION AND MOTION OF DEFENDANTS NISSAN NORTH AMERICA, INC. AND ONTARIO BISGAARD S(WIIH LLP NISSAN D/B/A METRO NISSAN OF MONTCLAIR’S TO COMPEL ARBITRATION AND STAY AWORNEYS AT LAW PROCEEDINGS; MEMORANDUM OF POINTS AND AUTHORITIES HERNANDEZ and VIOLETA DEL CARMEN HERNANDEZ (“Plaintiffs”), and staying this action during the pendency of that arbitration. Specifically, Defendants move to compel Plaintiffs’ claims related to their vehicle into hWN arbitration pursuant to the Retail Installment Sale Contract (“RISC”) they entered into when they purchased the vehicle. Defendants can compel this action into arbitration for three primary reasons: COOQONUI The RISC contains a valid and enforceable arbitration provision executed by Plaintiffs and defendant Metro Nissan; Defendant Nissan may enforce the Arbitration Provision pursuant to the doctrine of equitable estoppel. As the California Court of Appeal recently held in Felisz'lda v. FCA US LLC (2020) 53 10 Ca1.App.5th 486, 496-499, review denied (Nov. 24, 2020), equitable estoppel prevents plaintiffs 11 from avoiding their obligations t0 arbitrate Where, as here, their claims are intimatelyfounded in, 12 and intertwined with, their RISC and the purchase and the condition of their vehicle. Indeed, 13 Plaintiffs’ claims are all based on alleged defects and nonconformities With the subject vehicle and 14 NNA’s alleged failure to conform the subject vehicle to warranty; and 15 As a third-party beneficiary, Nissan may enforce the Arbitration Provision because it 16 expressly encompasses claims arising out 0f relationships with third parties who do not sign the 17 RISC, and Nissan bears a close relationship with the signatories. 18 If the Court finds the Arbitration Provision is valid and Defendants have standing to enforce 19 it, then it must defer any questions of arbitrability t0 the arbitrator. Further, if the Court agrees that 20 Defendants may compel arbitration, the FAA requires that this matter be stayed during the pendency 21 of the arbitration proceedings. 22 Defendants bring this motion pursuant to Code 0f Civil Procedure section 1281, et seq., the 23 Federal Arbitration Act, 9 U.S.C. § 2, and other applicable statutes and laws on the grounds that 24 Plaintiffs are bound by a valid, written agreement to arbitrate the subject matter of the Complaint. 25 Code Civ. Proc. § 128 1 .2. Defendants further move to stay this proceeding during the pendency of 26 the arbitration pursuant to Code 0f Civil Procedure section 1281.4 which expressly provides that 27 further proceedings “shall” be stayed “until an arbitration is had.” 28 LEWIS 4880—6535—1743.1 2 Case No. CIVSB2206030 BRISBOIS NOTICE OF MOTION AND MOTION OF DEFENDANTS NISSAN NORTH AMERICA, INC. AND ONTARIO BISGAARD & SMIH Lu> NISSAN D/B/A METRO NISSAN OF MONTCLAIR’S TO COMPEL ARBITRATION AND STAY AWORNEYS A1 LAW PROCEEDINGS; MEMORANDUM OF POINTS AND AUTHORITIES