Heather Ramirez-Kotey vs. American Honda Motor Co., Inc.

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

Tentative Ruling

Defendant American Honda Motor Co., Inc.’s (“Defendant”) motion to compel arbitration is ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing.

The notice of motion includes the incorrect address for the Court. The correct address for Department 54 of the Sacramento Superior Court is 813 6th Street, Sacramento, California 95814.

Background

Plaintiff Heather Ramirez-Kotey (“Plaintiff”) filed this lemon law action on February 17, 2023. Plaintiff’s Complaint includes two causes of action: (1) violation of Song-Beverly (“Song- Beverly”) – breach of express warranty; and (2) fraudulent inducement – concealment. Plaintiff alleges that on July 25, 2021 she leased a new 2021 Honda Pilot that came with express written warranties from Defendant. (Complaint, ¶¶ 8-9.) The vehicle was leased from AutoNation Honda Roseville. (Complaint, ¶ 84.)

Plaintiff alleges that the vehicle was delivered with defects and nonconformities to warranty, including a defective computerized driver-assistance safety system and a defective collision mitigation braking system. (Complaint, ¶ 85.) After experiencing these issues, Plaintiff delivered the vehicle to Defendant’s authorized repair facilities for warranty repairs, but the defects were not corrected after a number of attempts. (Complaint, ¶¶ 90-91.)

As to the fraud claim, Plaintiff alleges that at the time of the lease, Defendant had knowledge that its 2021 Honda Pilot vehicles suffered from defects in its “Honda Sensing” driver-assistance software. (Complaint, ¶¶ 11-83.) Plaintiff further alleges that prior to leasing the subject vehicle she reviewed Defendant’s marketing materials and advertisements about the qualities of the 2021 Honda Pilot. Plaintiff alleges that she relied on the representations made in the marketing materials as well as those made by Defendant’s agents during the leasing process, but that no information was disclosed regarding the sensing defect. (Complaint, ¶ 87.)

At the time of the lease, Plaintiff entered into a six-page agreement with AutoNation Honda Roseville titled, “Closed-End Motor Vehicle Lease Agreement – California.” The third page of the agreement contains a section titled, “Arbitration,” which stated, “The parties agree that any unresolved disputes shall be submitted to arbitration in accordance with the Arbitration clause

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

(Section 52). By initialing this Section, I am confirming that I have read this Section and the Arbitration clause, including the method of opting out of arbitration.” (Koo Decl., Exh. A, p. 3.) The box was initialed by Plaintiff.

The arbitration provision is found on the sixth page of the agreement and states:

“52. ARBITRATION:

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. BY ELECTING ARBITRATION, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU WAIVE THE RIGHT TO HAVE YOUR DISPUTE HEARD IN COURT AND WAIVE THE RIGHT TO BRING CLASS CLAIMS. YOU UNDERSTAND THAT DISCOVERY AND APPEAL RIGHTS ARE MORE LIMITED IN ARBITRATION.

Arbitration is a method of resolving a claim, dispute or controversy without filing a lawsuit. By agreeing to arbitrate, the right to go to court is waived and instead claims, disputes or controversies are submitted to binding arbitration. This provision sets forth the terms and conditions of our agreement. YOU and HONDA agree and acknowledge that this Lease affects interstate commerce and the Federal Arbitration Act (‘FAA’) applies.

By signing the Arbitration Consent, YOU elect to have disputes resolved by arbitration. YOU, HONDA or any involved third party may pursue a Claim. ‘Claim’ means any dispute between YOU, HONDA, or any involved third party relating to your account, this Lease, or our relationship, including any application, the Vehicle, its performance and any representations, omissions or warranties. ‘Claim’ does not include personal injury or wrongful death claims. YOU or HONDA may seek remedies in small claims court or provisional judicial remedies without arbitrating.

YOU or HONDA may select arbitration with American Arbitration Association, JAMS or National Arbitration and Mediation. Contact these sponsors for their rules. The hearing will be in the federal district where YOU reside. If agreed, it may be by telephone or written submissions. Filing and arbitrator fees to be paid per the sponsor rules. You may contact the sponsor for a fee waiver. If no fee waivers, HONDA will pay filing and arbitrator fees up to $5,000, unless law requires more. Each party is responsible for other fees. Arbitrator may award costs or fees to prevailing party, if permitted by law. HONDA will not seek fees, unless the claims are frivolous.

Arbitrator shall be an attorney or current or retired judge familiar with automotive or consumer finance. The arbitrator shall follow substantive law, statute of limitations and decide all issues

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

relating to the interpretation, construction, enforceability and applicability of this provision. The arbitrator may order relief permitted by law. This provision is governed and enforceable by the FAA. An award shall include a written opinion and be final, subject to appeal by the FAA.

This provision survives termination of this Lease or relationship, bankruptcy, assignment or transfer. If part of this provision is unenforceable, the remainder remains in effect. If unenforceability allows arbitration as a class action, [sic] then this provision is entirely unenforceable. YOU may opt out within 30 days of signing this Lease by sending a signed, written notice to HONDA at Honda Financial Services, P.O. Box 165007, Irving, TX 751116. HONDA reserves the right to make changes to this provision after providing written notice and an opportunity to opt out.

HONDA means Lessor, Dealer, Honda Lease Trust, American Honda Finance Corporation (AHFC), American Honda Motor Co., Inc., Honda Finance Exchange, Inc., Acura Financial Services (AFS), Honda Financial Services (HFS), HVT, Inc., their parents, subsidiaries, predecessors, successors, assignees, and officers, employees, representatives and agents. YOU means Lessee and Co-Lessee to this Lease.”

(Koo Decl., Exh. A, p. 6.)

The lease agreement was signed by Plaintiff and a representative of AutoNation Honda Roseville. (Koo Decl., Exh. A, p. 3.) Defendant did not sign the lease agreement. However, Defendant contends it may enforce the arbitration provision as a nonsignatory under either an equitable estoppel theory or, alternatively, as a third-party beneficiary. Although both parties present ample discussion of the equitable estoppel question by discussing the competing cases of Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 and Ochoa v. Ford Motor Company (Ford Motor Warranty Cases) (2023) 89 Cal.App.5th 1324, review granted July 19, 2023, S279969.)

Discussion

A written agreement to submit a controversy to arbitration is valid, enforceable, and irrevocable consistent with standard contract principles. There is a strong public policy favoring the enforcement of arbitration agreements. (Code Civ. Proc. § 1281; Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706.)

“Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.” (Sparks v. Vista Del Mar Child and Family Svcs. (2012) 207 Cal.App.4th 1511, 1517.) “Absent a clear agreement to submit disputes to arbitration, courts will not infer that the right to a jury trial has been waived.” (Id. at p. 1518.) “A party seeking to compel arbitration has the burden of proving the existence of a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

valid agreement to arbitrate.” (Ibid.) “Once that burden is satisfied, the party opposing arbitration must prove by a preponderance of the evidence any defense to the petition.” (Ibid.)

Nonsignatories generally may not compel contractual arbitration. (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1236-1237.) However, certain exceptions exist, and nonsignatories may enforce an arbitration provision is they can show some basis for extending the agreement to them under state contract law. (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1728; Arthur Andersen LLP v. Carlisle (2009) 556 U.S. 624, 631.) Under California law, a nonsignatory may enforce an arbitration agreement pursuant a third-party beneficiary theory. (See, e.g., Thornton v.

Career Training Center, Inc. (2005) 128 Cal.App.4th 116.) Nonsignatories may also enforce arbitration agreements through the doctrine of equitable estoppel. (See, e.g., Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010 186 Cal.App.4th 696 [claims asserted against nonsignatory “intimately intertwined” with contract containing arbitration clause.])

Equitable Estoppel

In Felisilda, the plaintiffs brought lemon law claims against the vehicle manufacturer and its certified dealer. The trial court ordered the plaintiffs’ claims against both defendants to arbitration, even though the manufacturer was not a party to the sales contract that contained the arbitration provision at issue. In affirming the trial court, the Felisilda court concluded that the arbitration provision applied to claims against the manufacturer based on equitable estoppel because the plaintiffs’ claims against the manufacturer were based solely on the warranties contained in the sales contract. The court stated:

“The Felisildas’ claim against FCA directly relates to the condition of the vehicle that they allege to have violated warranties they received as a consequence of the sales contract. Because the Felisildas expressly agreed to arbitrate claims arising out of the condition of the vehicle – even against third party nonsignatories to the sales contract – they are estopped from refusing to arbitrate their claim against FCA. Consequently, the trial court properly ordered the Felisildas to arbitrate their claims against FCA.”

(Felisilda, supra, 53 Cal.App.5th at p. 497.)

The Ochoa case involved several lemon law actions against only the manufacturer that were consolidated into one action. In affirming the trial court’s denial of the manufacturer’s motion to compel arbitration, the Ochoa court expressly declined to follow Felisilda and concluded that equitable estoppel did not apply because the plaintiffs’ claims were not founded in the sale contract. Specifically, in its discussion of Felisilda, the Ochoa court stated:

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

“That the Felisilda plaintiffs and the dealer agreed in their sale contract to arbitrate disputes between them about the condition of the vehicle does not equitably estop the plaintiffs from asserting FCA has no right to demand arbitration. Equitable estoppel would apply if the plaintiffs had sued FCA based on the terms of the sale contract yet denied FCA could enforce the arbitration clause in that contract. (Felisilda, supra, 53 Cal.App.5th at pp. 495-496.) That is not what the plaintiffs did in Felisilda.”

(Ochoa, supra, 89 Cal.App.5th at p. 1334.)

The court also rejected the Felisilda court’s broad interpretation of language in the arbitration agreement related to claims against third parties, specifically the provision that permitted arbitration of any claim or dispute arising out of the “‘purchase or condition of this vehicle, the contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) .’” (Ochoa, supra, 89 Cal.App.5th at p. 1334, italics in Felisilda.) This language was found in the arbitration agreements in both Felisilda and Ochoa, and is identical to the language in the Arbitration Provision in this case.

Regarding this language, the Ochoa court stated, “We do not read this italicized language as consent by the purchaser to arbitrate claims with third party nonsignatories. Rather, we read it as a further delineation of the subject matter of claims the purchasers and dealers agreed to arbitrate.” (Id. at pp. 1334-1335, italics in original.)

In concluding that the plaintiff’s lemon law claims were not founded in the sale contract, the court noted that although many of the plaintiffs referred to the contract in their complaints and even occasionally attached it as an exhibit, “no plaintiffs alleged violations of the sale contracts’ express terms. Rather, plaintiffs’ claims are based on FMC’s statutory obligations to reimburse consumers or replace their vehicles when unable to repair in accordance with its warranty. Not one of the plaintiffs sued on any express contractual language in the sale contracts.” (Ochoa, supra, 89 Cal.App.5th at p. 1335.)

The court also noted that the sale contracts did not contain any warranties, finding that “the substantive terms of the sale contracts relate to sale and financing and nothing more.” (Ibid) The court also rejected the manufacturer’s argument that California law treats all warranty claims as contract claims, citing to Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 and Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Cavanaugh (1963) 217 Cal.App.2d 492 (Cavanaugh).

Ultimately, the court concluded:

“But, contrary to FMC’s assertion, it does not ‘naturally follow’ from any contractual character of manufacturer warranty claims that they inhere in a retail sale contract containing no warranty terms. Following Greenman, supra, 69 Cal.2d 57, and Cavanaugh, supra, 217 Cal.App.2d 492, independent manufacturer warranties are not part of, but are independent from, retail sale

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

contracts.

Again, the ‘“‘fundamental point’”’ of using equitable estoppel to compel arbitration is to prevent a party from taking advantage of a contract’s substantive terms while avoiding those terms requiring arbitration. (Felisilda, supra, 53 Cal.App.5th at p. 496.) Plaintiffs’ claims in no way rely on the sale contracts. Equitable estoppel does not apply.”

(Ochoa, supra, 89 Cal.App.5th at p. 1336.)

The Ochoa opinion was published on April 4, 2023. On July 19, 2023, the California Supreme Court granted review and noted that Ochoa “may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 [20 Cal. Rptr. 321, 369 P.2d 937], to choose between sides of any such conflict.” (Ochoa v. Ford Motor Co. (In re Ford Motor Warranty Cases) (July 19, 2023, S279969) 2023 Cal. LEXIS 4235.)

Given the conflict between Felisilda and Ochoa and the Supreme Court’s statement in its opinion granting review of Ochoa, the Court has discretion to choose between sides of the conflict. Here, the Court chooses to follow Ochoa on the issue of equitable estoppel. Like the plaintiffs in Ochoa, Plaintiff’s claims in this case are not founded on the lease agreement, as Plaintiff does not allege any breach of the terms of the lease. Instead, Plaintiff’s claims “are based on [Defendant]’s statutory obligations to reimburse consumers or replace their vehicles when unable to repair in accordance with its warranty.” (Ochoa, supra, 89 Cal.App.5th at p. 1335.)

Indeed, Plaintiff has not “sued on any express contractual language in the sale contract[].” (Ibid.) (See generally, Complaint, ¶¶ 8-9, 93-108.) Additionally, the lease agreement expressly disclaims any warranties related to the vehicle. (Koo Decl., Exh. A, p. 2.)

Moreover, Plaintiff’s fraudulent concealment claim is not founded on the lease agreement. Plaintiff alleges that Defendant concealed the existence of a sensing defect in its vehicles through its marketing materials by touting the vehicle’s computerized driver-assistance safety system. (Complaint, ¶¶ 110-116.) While Plaintiff’s allegations also seemingly encompass the lease transaction itself, that is immaterial to the question of whether Plaintiff is equitably estopped from denying Defendant’s enforcement of the arbitration provision. None of Plaintiff’s fraud allegations relate to the terms of the lease agreement.

Accordingly, Defendant may not enforce the arbitration provision under an equitable estoppel theory.

Third-Party Beneficiary

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

“‘A third party beneficiary is someone who may enforce a contract because the contract is made expressly for his benefit.’” (Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 301.) “[A] third party beneficiary of an arbitration agreement may enforce it.” (Ronay Family Limited Partnership v. Tweed (2013) 216 Cal.App.4th 830, 838 (Ronay).) “But ‘[t]o invoke the third party beneficiary exception, [a third party beneficiary] ha[s] to show that the arbitration clause was “‘made expressly for [its] benefit.’”’” (Fuentes v. TMCSF, Inc. (2018) 26 Cal.App.5th 541, 552, quoting Ronay, supra, 216 Cal.App.4th at p. 838, italics added by Fuentes.)

“To show the contracting parties intended to benefit it, a third party must show that, under the express terms of the contract at issue and any other relevant circumstances under which the contract was made, (1) ‘the third party would in fact benefit from the contract’; (2) ‘a motivating purpose of the contracting parties was to provide a benefit to the third party’; and (3) permitting the third party to enforce the contract ‘is consistent with the objectives of the contract and the reasonable expectations of the contracting parties.’”

(Ochoa, supra, 89 Cal.App.5th at p. 1337, quoting Goonenwardene v. ADP, LLC (2019) 6 Cal.5th 817, 830.)

As noted above, the arbitration provision in the present case differs significantly from the arbitration provision in Ochoa and Felisilda. The court in Ochoa discussed the provision at issue in that case as such:

“In relevant part, it provides, ‘EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.’ It later elaborates: ‘[a]ny claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claims 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 did not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action.’”

(Ochoa, supra, 89 Cal.App.5th at p. 1330.)

Felisilda did not address the third-party beneficiary issue, but Ochoa did, stating:

“We agree with Ngo that the sale contracts reflect no intention to benefit a vehicle manufacturer under Goonenwardene. First, nothing in the sale contracts or their arbitration provision offers any direct ‘benefit’ to FMC (Goodenwarde, supra, 6 Cal.5th at p. 830). FMC’s claim that it

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

‘would benefit from utilizing arbitration as an efficient means of dispute resolution’ (italics added) if treated as a third party beneficiary begs the question: does the provision directly benefit FMC? The answer is patently ‘no.’ Its direct benefits are expressly limited to those persons who might rely on it to avoid proceeding in court—the purchaser, the dealer, and the dealer’s employees, agents, successors or assigns. FMC is none of these.

Second, there is no indication that a benefit to FMC was the signatories’ ‘motivating purpose’ (Goodenwardene, supra, 6 Cal.5th at p. 830) in contracting for the sale and purchase of a Ford vehicle. The manifest intent of the parties was to buy, sell and finance a car, and to allow either the purchaser or the dealer to compel arbitration of the specified categories of disputes between them, or between the purchaser and any of the dealer’s ‘employees, agents, successors or assigns.’ (See Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 962, 967 [265 Cal. Rptr. 3d 523] [intent of arbitration agreement ascertained solely from the words of written agreement, if possible; language controls if clear and explicit].)”

(Ochoa, supra, 89 Cal.App.5th at pp. 1338-1339.)

The Ngo case referenced in Ochoa is Ngo v. BMW of N. Am., LLC (9th Cir. 2022) 23 F.4th 942, which involved the same arbitration provision as Ochoa and Felisilda. As indicated by the passage quoted above, the Ochoa court found Ngo persuasive on this issue.

Here, unlike Ochoa and Ngo, the arbitration provision expressly includes Defendant under the definition of “HONDA,” as the term is defined as, “Lessor, Dealer, Honda Lease Trust, American Honda Finance Corporation (AHFC), American Honda Motor Co., Inc., Honda Finance Exchange, Inc. Acura Financial Services (AFS) Honda Financial Services (HFS), HVT, Inc., their parents, subsidiaries, predecessors, successors, assignees, and officers, employees, representatives and agents.” (Koo Decl., Exh. A, p. 6, emphasis added.) Citing this language, Defendant argues that “the intent to benefit AHM is apparent from the plain language of the Lease Agreement. The Arbitration Provision specially includes ‘American Honda Motor Co., Inc.’ under the definition of ‘HONDA’, and further grants ‘HONDA’ the right to seek arbitration under the provision.” (Motion Memo. at p. 11:9-12.)

While Defendant contends that this language satisfies the first element of the Goonenwardene test, Defendant does not address the remaining factors in its moving papers. Defendant does briefly touch on the remaining elements in its reply, but only in a conclusory fashion, relying again on the same definitional language. At the same time, Plaintiff contends that permitting Defendant to enforce the arbitration provision would be inconsistent with the objectives of the contract, which were “to buy, sell and finance Plaintiff’s car.” (Opp. Memo. at p. 10:6.) Plaintiff further contends that allowing Defendant to enforce the arbitration provision would not be consistent with the contracting parties’ reasonable expectations, since the contract expressly

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

disclaimed any effect on the manufacturer warranties. Specifically, Plaintiff argues, “No contracting party would reasonably expect that a third party could take advantage of a contract that expressly limits its application to the contracting parties—and disclaims any impact on that third party.” (Opp. Memo. at p. 10:11-13.)

The Court concludes that Defendant is not a third-party beneficiary for the purposes of enforcing the arbitration provision. First, the Court agrees with Plaintiff that Defendant has failed to satisfy all of the Gooenwardene elements. Defendant has not presented any legitimate argument beyond the fact that it is included in the definition of “HONDA” in the arbitration provision, but this seemingly conflicts with the fact that the lease agreement expressly disclaims any warranties. “For a nonsignatory to invoke an arbitration provision in an agreement based on a third party beneficiary theory, the nonsignatory beneficiary first must establish the agreement was applicable to the controversy.” (Jones v.

Jacobsen (2011) 195 Cal.App.4th 1, 22; see also DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1355.) As discussed above in the preceding section, Plaintiff’s claims are not founded on the lease agreement, and thus Defendant has not established that the lease agreement is applicable to this case.

Accordingly, Defendant may not enforce the arbitration provision under a third-party beneficiary theory.

Agency

In its reply, Defendant also argues that it can enforce the arbitration provision under an agency theory. This argument was not raised in Defendant’s opening memorandum or in Plaintiff’s opposition. “The general rule of motion practice is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) This principle applies equally to new arguments raised for the first time on reply, “particularly where the circumstances giving rise to the argument” were known to the moving party when the motion was filed. Accordingly, the Court declines to consider Defendant’s agency argument.

Disposition

Defendant has failed to establish that it has standing to enforce the arbitration agreement as a nonsignatory. Accordingly, Defendant’s motion to compel arbitration is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)

NOTICE:

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 08/30/2023 Hearing on Motion to Compel Arbitration and Stay Proceedings in Department 54

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.