Preview
SUPERIOR COURT
COUNTY OF SAN BERNARDINO.
247 West Third Street, Department 23
San Bernardino, California 92415
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN BERNARDINO
SAN BERNARDINO DISTRICT
OCT 06 2023
jy Meeps Pam
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN BERNARDINO
10
ll MARISSA AMBROSI p/k/a/MARISSA KING, ) Case No. CIVDS2019813
12
Plaintiff,
13 RULING ON PLAINTIFF’S MOTION FOR
Vs. RECONSIDERATION
14
1S KIA MOTORS AMERICA, INC.; and DOES 1
through 10, inclusive,
Defendant(s).
17
18
19
I PROCEDURAL/FACTUAL BACKGROUND
20
21 On September 10, 2020, Marissa Ambrosi pka Marissa King (“Plaintiff”)! filed this “lemon
22 law” action against Defendant Kia Motors America, Inc. (“Kia” or “Defendant”). Plaintiff's operative
23 Second Amended Complaint (SAC), filed on April 22, 2021, includes five causes of action against
Kia relating to breaches of express and implied warranties in violation of the Song-Beverly Act.
25
26
27
' Ostensibly, pka stands for “professionally known as.”
-1- ——
On May 10, 2021, Kia filed a motion to compel arbitration, which the Court granted on June
7, 2021.
On June 8, 2023, Plaintiff filed this motion for reconsideration of the Court’s order granting
Kia’s motion to compel arbitration. Kia filed a timely opposition. Plaintiff filed a timely reply.
Il. DISCUSSION
A motion for reconsideration must: (1) be made within 10 days after service of the notice of
entry of the order or ruling; (2) be based on new or different facts, circumstances or law; and (3) be
accompanied by a declaration stating what previous “application” was made, the ruling thereon, and
10 what new or different facts, circumstances or law are claimed to exist. (Code Civ. Proc., § 1008, subd.
11 (a).)
12
Kia argues Plaintiff's motion is untimely because it challenges a 2-year-old order. (See Opp.
13
4.) Kia’s argument is not persuasive.
14
A formal notice of ruling is required to set the time limit running on a motion for
15
reconsideration. The 10-day time limit runs from service of notice of entry of the order. (Code Civ.
16
Proc., § 1008, subd. (a); Novak v. Fay (2015) 236 Cal.App.4th 329, 335-336 [10-day limit did not
17
18 apply where no notice of entry of order served].)
19 Here, the Court ordered Kia to prepare an order granting Kia’s motion to compel arbitration.
20 (See Minutes 6/7/21.) But there is no indication that such an order was ever prepared. Nor is there
21
any indication that Kia ever served Plaintiff with notice of entry of such an order. Thus, the 10-day
22
time limit was never triggered.
23
Moreover, although parties may move for reconsideration only as authorized by Section 1008,
24
25 that statute “does not limit the court’s ability, on its own motion, to reconsider its prior interim orders.
26 so it may correct its own errors.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) Even where a
27 motion to reconsider is filed in violation of Section 1008, the Court has inherent power to correct its
28
-2-
2
own errors when they are called to the Court’s attention by way of an improperly filed motion. (Nieto
v. Blue Shield of Calif Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73.)
Plaintiff's motion sets forth new law which supports reconsideration. In reviewing that
authority, it appears the Court should have denied Kia’s motion to compel arbitration in the first
instance.
The arbitration agreement in the underlying motion to compel arbitration is a Retail
Installment Sales Contract (RISC) between Plaintiff and All Star Kia San Bernardino (the
Dealership). (See Ex. A to Yao Decl., filed 5/10/21.) But Plaintiffis not suing Kia for breach of the
10 RISC. Rather, she is suing Kia for breaches of warranty. (See SAC {23 [alleging “Plaintiff received
ll an express written warranty” attached to Plaintiff's SAC as Exhibit AJ.)
12 The disputed issue of law in the underlying motion to compel arbitration was whether the
13
nonsignatory manufacturer, Kia, could compel Plaintiff to arbitrate her claims against Kia under the
14
theory that Kia was a third-party beneficiary to the RISC or under an equitable estoppel theory.
15
In support of these theories, Kia cited the Third District Court of Appeal’s holding in Felisilda
16
v. FCA US LLC (2020) 53 Cal.App.Sth 486. However, after this Court granted Kia’s motion, the
17
18 Second District Court of Appeal, Division Eight, in Ford Motor Warranty Cases (2023) 89
19 Cal.App.Sth 1324, rejected Felisilda.? Recently, in Montemayor v. Ford Motor Co. (June 26, 2023)
20 92 Cal.App.Sth 958, the Second District Court of Appeal, Division Seven, likewise held that an
21
automobile manufacturer cannot enforce an arbitration provision in a sales contract between the
22
consumer and a dealership where the consumer’s claims against the manufacturer are founded on the
23
24
25
26
27 ? Plaintiff's request for judicial notice of the Court of Appeal’s opinion in Ford Motor Warranty
Cases is unnecessary. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45-
28 46, fn. 9 [*A request for judicial notice of published material is unnecessary. Citation to the material
is sufficient.”
].)
=34 7
manufacturer’s express warranty for the vehicle, not any obligation of the dealer under the sales
contract.
This Court finds the analysis in Ford Motor Warranty Cases and Montemayor more
persuasive than that in Felisilda.
For the same reasons discussed by the Court of Appeal in Ford Motor Warranty Cases, Kia’s
equitable estoppel argument fails. (See Ford Motor Warranty Cases, supra, 89 Cal.App.Sth 1324,
1333 [“[Ford’s equitable estoppel] argument proceeds along two lines. The first is that automobile
warranty claims are founded in and intertwined with sales contracts in California as a matter of law.
10 ... The second is that breaches of warranties are generally treated as breaches of contract, so breaches
11 of any warranties that accompanied the sale contract are necessarily intertwined with the sale contract.
12 We .. . reject each of these arguments.”}.)
13
The same is true of Kia’s third-party beneficiary argument. The reference in the arbitration
14
provision to “third parties who do not sign this contract” does not give Kia standing to compel
1S
arbitration. (See Jn re Ford Motor Warranty Cases, supra, 89 Cal.App.Sth at p. 1339, citing Ngo v.
16
17 BMW of N. Am., LLC (9th Cir. 2022) 23 F.4th 942, 948 [reference to third party non-signatories
18 “concerns what may be arbitrated, not who may arbitrate”]; see also Montemayor, supra, 92
19 Cal.App.Sth 958, 310 Cal. Rptr. 3d 82, 96 [explaining that the plaintiffs and the dealership “agreed
20
in the sales contract on terms for the financing and purchase of the vehicle from [the dealership], and
21
they agreed to arbitrate disputes between them arising out of the credit application, purchase, or
22
condition of the purchased vehicle. In no way was the sales contract ‘made expressly for the benefit
23
of a third person.’”], quoting Civ. Code, § 1559.)
24
25 When read in context, the language of the arbitration provision plainly does not give Kia the
26 right to compel arbitration as a third-party beneficiary or otherwise. (See Ex. A to Yao Decl., filed
27 5/10/21 [RISC containing same language as that discussed in Felisilda, Ford Motor Warranty Cases,
28
and Montemayor).)
-4
Notably, Kia’s counsel declares that no arbitrator has been selected and the arbitration has not
yet commenced. (See Yao Decl. §§2, 3.) As such, there would be no apparent prejudice resulting from
an order granting this motion.
In short, Kia failed to demonstrate the existence of an arbitration agreement between Plaintiff
and Kia, or that Kia may enforce the arbitration agreement between Plaintiff and the nonparty
dealership on equitable grounds.
II. DISPOSITION
The Court will RECONSIDER its prior order granting Kia’s motion to compel arbitration
10 and rule as follows:
11 1 VACATE the Court’s June 7, 2021 order granting Kia’s motion to compel arbitration.
12
2 DENY Kia’s motion to compel arbitration as follows:
13
a) DENY the parties’ requests for judicial notice of other trial court minute orders
14
because they are irrelevant to the disposition of Kia’s motion. (See Harrott v. County
15
of Kings (2001) 25 Cal.4th 1138, 1148 [trial court decisions have no precedential
16
17 value].)
18 b) DENY Defendant Kia’s motion to compel arbitration because Kia failed to
19 demonstrate the existence of an arbitration agreement between Plaintiff and Kia, or
20 that Kia may enforce the arbitration agreement between Plaintiff and the nonparty
21
dealership on equitable grounds.
22
23
24
25
26 Dated: _/ ey
27 n. Donald Alvarez
Judge of the Superior Court
28
-5-
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN BERNARDINO, SAN BERNARDINO JUSTICE CENTER
IN THE MATTER OF: MARISSA AMBROS! p/k/a/MARISSA KING, Plaintiff,
vs.
KIA MOTORS AMERICA INC.; and DOES 1 through 10, inclusive, Defendants.
CASE NO.: CIVDS2019813
PROOF OF SERVICE BY MAIL
The undersigned hereby declares: | am a citizen of the United States of America, over the age of eighteen years.
employed in the above-named county, and not a party to nor interested in this proceeding. My business address is
247 W. 3" St., San Bernardino, California 92415. | am a Deputy Clerk of said County and on the date shown below,
served a copy of the following:
10
RULING ON PLAINTIFF'S MOTION FORE RECONSIDERATION
11
Q Enclosed in a sealed envelope, first class postage prepaid in the U.S. mail at the location shown above,
12 mailed to the interested parties addressed as shown below:
13 oO By Hand Delivery, | caused such document to be served on all parties to this action to the interested parties
addressed as shown below:
14
STRATEGIC LEGAL PRACTICES SJL LAW LLP
15 A PROFESSIONAL CORPORATION Julian G. Senior
Tionna Dolin Siyun Yao
16 Daniel Law 841 Apollo St., Suite 300
Jacob Lister El Segundo, CA 90245
17 1888 Century Park East, 19" Floor
Los Angeles, CA 90067
18
At the time of mailing this notice there was regular communication between the place of mailing and the place(s) to
19 which this notice was addressed
20 | declare under penalty of perjury the foregoing to be true and correct.
21
22
DATED: Of+obeen 10, OAS BY: LYSen
at! Mullaney,
AC
tiAdminist, antIl
23
24
25
26
27
28
1.
Preview
SUPERIOR COURT COUNTY OF SAN BERNARDINO. 247 West Third Street, Department 23 San Bernardino, California 92415 SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN BERNARDINO SAN BERNARDINO DISTRICT OCT 06 2023 jy Meeps Pam SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO 10 ll MARISSA AMBROSI p/k/a/MARISSA KING, ) Case No. CIVDS2019813 12 Plaintiff, 13 RULING ON PLAINTIFF’S MOTION FOR Vs. RECONSIDERATION 14 1S KIA MOTORS AMERICA, INC.; and DOES 1 through 10, inclusive, Defendant(s). 17 18 19 I PROCEDURAL/FACTUAL BACKGROUND 20 21 On September 10, 2020, Marissa Ambrosi pka Marissa King (“Plaintiff”)! filed this “lemon 22 law” action against Defendant Kia Motors America, Inc. (“Kia” or “Defendant”). Plaintiff's operative 23 Second Amended Complaint (SAC), filed on April 22, 2021, includes five causes of action against Kia relating to breaches of express and implied warranties in violation of the Song-Beverly Act. 25 26 27 ' Ostensibly, pka stands for “professionally known as.” -1- —— On May 10, 2021, Kia filed a motion to compel arbitration, which the Court granted on June 7, 2021. On June 8, 2023, Plaintiff filed this motion for reconsideration of the Court’s order granting Kia’s motion to compel arbitration. Kia filed a timely opposition. Plaintiff filed a timely reply. Il. DISCUSSION A motion for reconsideration must: (1) be made within 10 days after service of the notice of entry of the order or ruling; (2) be based on new or different facts, circumstances or law; and (3) be accompanied by a declaration stating what previous “application” was made, the ruling thereon, and 10 what new or different facts, circumstances or law are claimed to exist. (Code Civ. Proc., § 1008, subd. 11 (a).) 12 Kia argues Plaintiff's motion is untimely because it challenges a 2-year-old order. (See Opp. 13 4.) Kia’s argument is not persuasive. 14 A formal notice of ruling is required to set the time limit running on a motion for 15 reconsideration. The 10-day time limit runs from service of notice of entry of the order. (Code Civ. 16 Proc., § 1008, subd. (a); Novak v. Fay (2015) 236 Cal.App.4th 329, 335-336 [10-day limit did not 17 18 apply where no notice of entry of order served].) 19 Here, the Court ordered Kia to prepare an order granting Kia’s motion to compel arbitration. 20 (See Minutes 6/7/21.) But there is no indication that such an order was ever prepared. Nor is there 21 any indication that Kia ever served Plaintiff with notice of entry of such an order. Thus, the 10-day 22 time limit was never triggered. 23 Moreover, although parties may move for reconsideration only as authorized by Section 1008, 24 25 that statute “does not limit the court’s ability, on its own motion, to reconsider its prior interim orders. 26 so it may correct its own errors.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) Even where a 27 motion to reconsider is filed in violation of Section 1008, the Court has inherent power to correct its 28 -2- 2 own errors when they are called to the Court’s attention by way of an improperly filed motion. (Nieto v. Blue Shield of Calif Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73.) Plaintiff's motion sets forth new law which supports reconsideration. In reviewing that authority, it appears the Court should have denied Kia’s motion to compel arbitration in the first instance. The arbitration agreement in the underlying motion to compel arbitration is a Retail Installment Sales Contract (RISC) between Plaintiff and All Star Kia San Bernardino (the Dealership). (See Ex. A to Yao Decl., filed 5/10/21.) But Plaintiffis not suing Kia for breach of the 10 RISC. Rather, she is suing Kia for breaches of warranty. (See SAC {23 [alleging “Plaintiff received ll an express written warranty” attached to Plaintiff's SAC as Exhibit AJ.) 12 The disputed issue of law in the underlying motion to compel arbitration was whether the 13 nonsignatory manufacturer, Kia, could compel Plaintiff to arbitrate her claims against Kia under the 14 theory that Kia was a third-party beneficiary to the RISC or under an equitable estoppel theory. 15 In support of these theories, Kia cited the Third District Court of Appeal’s holding in Felisilda 16 v. FCA US LLC (2020) 53 Cal.App.Sth 486. However, after this Court granted Kia’s motion, the 17 18 Second District Court of Appeal, Division Eight, in Ford Motor Warranty Cases (2023) 89 19 Cal.App.Sth 1324, rejected Felisilda.? Recently, in Montemayor v. Ford Motor Co. (June 26, 2023) 20 92 Cal.App.Sth 958, the Second District Court of Appeal, Division Seven, likewise held that an 21 automobile manufacturer cannot enforce an arbitration provision in a sales contract between the 22 consumer and a dealership where the consumer’s claims against the manufacturer are founded on the 23 24 25 26 27 ? Plaintiff's request for judicial notice of the Court of Appeal’s opinion in Ford Motor Warranty Cases is unnecessary. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45- 28 46, fn. 9 [*A request for judicial notice of published material is unnecessary. Citation to the material is sufficient.” ].) =34 7 manufacturer’s express warranty for the vehicle, not any obligation of the dealer under the sales contract. This Court finds the analysis in Ford Motor Warranty Cases and Montemayor more persuasive than that in Felisilda. For the same reasons discussed by the Court of Appeal in Ford Motor Warranty Cases, Kia’s equitable estoppel argument fails. (See Ford Motor Warranty Cases, supra, 89 Cal.App.Sth 1324, 1333 [“[Ford’s equitable estoppel] argument proceeds along two lines. The first is that automobile warranty claims are founded in and intertwined with sales contracts in California as a matter of law. 10 ... The second is that breaches of warranties are generally treated as breaches of contract, so breaches 11 of any warranties that accompanied the sale contract are necessarily intertwined with the sale contract. 12 We .. . reject each of these arguments.”}.) 13 The same is true of Kia’s third-party beneficiary argument. The reference in the arbitration 14 provision to “third parties who do not sign this contract” does not give Kia standing to compel 1S arbitration. (See Jn re Ford Motor Warranty Cases, supra, 89 Cal.App.Sth at p. 1339, citing Ngo v. 16 17 BMW of N. Am., LLC (9th Cir. 2022) 23 F.4th 942, 948 [reference to third party non-signatories 18 “concerns what may be arbitrated, not who may arbitrate”]; see also Montemayor, supra, 92 19 Cal.App.Sth 958, 310 Cal. Rptr. 3d 82, 96 [explaining that the plaintiffs and the dealership “agreed 20 in the sales contract on terms for the financing and purchase of the vehicle from [the dealership], and 21 they agreed to arbitrate disputes between them arising out of the credit application, purchase, or 22 condition of the purchased vehicle. In no way was the sales contract ‘made expressly for the benefit 23 of a third person.’”], quoting Civ. Code, § 1559.) 24 25 When read in context, the language of the arbitration provision plainly does not give Kia the 26 right to compel arbitration as a third-party beneficiary or otherwise. (See Ex. A to Yao Decl., filed 27 5/10/21 [RISC containing same language as that discussed in Felisilda, Ford Motor Warranty Cases, 28 and Montemayor).) -4 Notably, Kia’s counsel declares that no arbitrator has been selected and the arbitration has not yet commenced. (See Yao Decl. §§2, 3.) As such, there would be no apparent prejudice resulting from an order granting this motion. In short, Kia failed to demonstrate the existence of an arbitration agreement between Plaintiff and Kia, or that Kia may enforce the arbitration agreement between Plaintiff and the nonparty dealership on equitable grounds. II. DISPOSITION The Court will RECONSIDER its prior order granting Kia’s motion to compel arbitration 10 and rule as follows: 11 1 VACATE the Court’s June 7, 2021 order granting Kia’s motion to compel arbitration. 12 2 DENY Kia’s motion to compel arbitration as follows: 13 a) DENY the parties’ requests for judicial notice of other trial court minute orders 14 because they are irrelevant to the disposition of Kia’s motion. (See Harrott v. County 15 of Kings (2001) 25 Cal.4th 1138, 1148 [trial court decisions have no precedential 16 17 value].) 18 b) DENY Defendant Kia’s motion to compel arbitration because Kia failed to 19 demonstrate the existence of an arbitration agreement between Plaintiff and Kia, or 20 that Kia may enforce the arbitration agreement between Plaintiff and the nonparty 21 dealership on equitable grounds. 22 23 24 25 26 Dated: _/ ey 27 n. Donald Alvarez Judge of the Superior Court 28 -5- SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN BERNARDINO, SAN BERNARDINO JUSTICE CENTER IN THE MATTER OF: MARISSA AMBROS! p/k/a/MARISSA KING, Plaintiff, vs. KIA MOTORS AMERICA INC.; and DOES 1 through 10, inclusive, Defendants. CASE NO.: CIVDS2019813 PROOF OF SERVICE BY MAIL The undersigned hereby declares: | am a citizen of the United States of America, over the age of eighteen years. employed in the above-named county, and not a party to nor interested in this proceeding. My business address is 247 W. 3" St., San Bernardino, California 92415. | am a Deputy Clerk of said County and on the date shown below, served a copy of the following: 10 RULING ON PLAINTIFF'S MOTION FORE RECONSIDERATION 11 Q Enclosed in a sealed envelope, first class postage prepaid in the U.S. mail at the location shown above, 12 mailed to the interested parties addressed as shown below: 13 oO By Hand Delivery, | caused such document to be served on all parties to this action to the interested parties addressed as shown below: 14 STRATEGIC LEGAL PRACTICES SJL LAW LLP 15 A PROFESSIONAL CORPORATION Julian G. Senior Tionna Dolin Siyun Yao 16 Daniel Law 841 Apollo St., Suite 300 Jacob Lister El Segundo, CA 90245 17 1888 Century Park East, 19" Floor Los Angeles, CA 90067 18 At the time of mailing this notice there was regular communication between the place of mailing and the place(s) to 19 which this notice was addressed 20 | declare under penalty of perjury the foregoing to be true and correct. 21 22 DATED: Of+obeen 10, OAS BY: LYSen at! Mullaney, AC tiAdminist, antIl 23 24 25 26 27 28 1.