Tanis Gennean Hershkowitz v. Hyundai Motor America

to keep the same jury empaneled for an additional 30 days while Plaintiff conducts discovery regarding Defendants' financial condition. Instead, Defendants are ordered to identify documents in their possession which are relevant and admissible for the purpose of establishing the profits or financial condition referred to in Civil Code 3295(a) and to identify the witnesses employed by or related to the Defendants who would be most competent to testify to those facts. See Civil Code 3295(c). Plaintiff may then subpoena documents or witnesses to be available during Phase 2 of the trial for the purpose of establishing the profits or financial condition referred to in Civil Code 3295(a), in the event Phase 2 of the trial is necessary.

CONCLUSION The motion is granted, in part, and denied, in part. The request to bifurcate the trial into two phases is granted. Phase 1 of the trial will address liability, affirmative defenses, causation, actual/compensatory damages, and whether Plaintiff has established entitlement to punitive or exemplary damages against any Defendant, including whether any Defendant acted with malice, oppression, or fraud under Civil Code 3294, and whether any exemplary damage predicate exists under Civil Code 3340.

If the trier of fact returns a verdict awarding actual damages and making the required punitive/exemplary damage predicate findings, in Phase 2, the same jury will hear the punitive/exemplary damages amount phase. Within 30 days of the hearing on this motion, Defendants are ordered to identify documents in their possession which are relevant and admissible for the purpose of establishing the profits or financial condition referred to in Civil Code 3295(a) and to identify the witnesses employed by or related to the Defendants who would be most competent to testify to those facts.

See Civil Code 3295(c). Plaintiff may then subpoena documents or witnesses to be available during Phase 2 of the trial for the purpose of establishing the profits or financial condition referred to in Civil Code 3295(a), in the event Phase 2 of the trial is necessary. No evidence of any Defendant's profits, net worth, wealth, or financial condition shall be admitted in Phase 1 of the trial unless independently relevant and otherwise admissible by order of the Court. The Court reserves determination of the precise timing, manner, scope, and protective order terms governing any Phase 2 production or presentation of financial condition evidence.

Plaintiff's request to conduct targeted, expedited financial condition discovery for a period not to exceed thirty (30) calendar days before the punitive/exemplary damages amount phase, if the trier of fact in Phase 1 returns a verdict awarding Plaintiff actual damages and finding, by clear and convincing evidence, that any Defendant acted with malice, oppression, or fraud, or otherwise finding an exemplary damages predicate under Civil Code 3340, is denied.

Date: 8/21/26 Case #26CHCV00400 MOTION TO COMPEL ARBITRATION Motion filed on 4/17/26. MOVING PARTY: Defendant Hyundai Motor America RESPONDING PARTY: Plaintiff Tanis Gennean Hershkowitz NOTICE: ok RELIEF REQUESTED: An order: (1) compelling Plaintiff to arbitrate all of Plaintiff's claims in accordance with the arbitration agreement and (2) staying this action pending the outcome of arbitration. RULING: The motion is granted. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of Plaintiff Tanis Gennean Hershkowitz's (Plaintiff) purchase of a 2023 Hyundai Elantra Hybrid (the Vehicle) on or about 5/28/23. (Complaint P.8; Rao Decl.

P.4). The Vehicle was warranted by Defendant Hyundai Motor America (Defendant). (Complaint P.9). On 6/5/23, Plaintiff enrolled the Vehicle in Defendant's Bluelink service. (Rao Decl. P.P.7, 18-19, Ex.A). To enroll in Defendant's Bluelink services, customers must agree to the then-effective Bluelink Connected Services Agreement (CSA), the terms and conditions of which also include a binding arbitration provision. (Rao Decl. P.P.6, 20, Ex.B). Plaintiff contends that the Vehicle suffers from defects and nonconformities to warranty; that Plaintiffs delivered the Vehicle to Defendant's authorized repair facility for repair and Defendant was unable to conform the Vehicle to the applicable express warranty after a reasonable number of repair attempts. (See Complaint P.P.10-14, 22, 27-28).

Further, Plaintiff alleges that despite the foregoing, Defendant has failed to replace the Vehicle and/or provide Plaintiff with restitution as required under the Song-Beverly Act. (Complaint P.29). Therefore, on 1/29/26, Plaintiff filed this action against Defendant for: (1) Violation of Song-Beverly Act - Breach of Express Warranty, (2) Violation of Song-Beverly Act - Breach of Implied Warranty and (3) Violation of Song-Beverly Act - Civil Code 1793.2. On 4/17/26, Defendant requested that Plaintiff stipulate to arbitration; however, Plaintiff has not agreed to submit the claims to arbitration. (Park Decl.

P.2). Therefore, on 4/17/26, Defendant filed and served the instant motion seeking an order compelling Plaintiff to arbitrate all of Plaintiff's claims pursuant to the arbitration agreement and staying this action pending the outcome of the arbitration. Plaintiff has opposed the motion and Defendant has filed a reply to the opposition.

ANALYSIS Plaintiff's Request for Judicial Notice is granted. Plaintiff's objections, numbers 1-2, to the declaration of Vijay Rao are overruled. Defendant's objections, numbers 1-5,to the declaration of James L. Carroll are overruled. ** * Defendant moves to compel arbitration based on the agreement to arbitrate contained in the Bluelink Connected Services Agreement (CSA). Bluelink Connected Services Agreement Defendant's Bluelink services refers to a connected car system that includes various functions and features. (Rao Decl.

P.5). To enroll in Defendant's Bluelink services, customers must agree to the then-effective Connected Services Agreement (CSA). (Id. at P.6). Defendant makes a copy of the CSA available to every customer who enrolls in the Bluelink services plan. Id. In order for Plaintiff to have enrolled in Defendant's Bluelink services, Plaintiff would have had to click a box to acknowledge that they "read and agree[d] to the Blue Link Terms & Conditions" and then click the "Complete" button. (Id. at P.11).

The phrase "Terms & Conditions" included a hyperlink to the CSA. Id. As presented to Plaintiff, the box acknowledging the Terms & Conditions would not have been "prepopulated" with a check mark. Id. Plaintiff would have had to click that box to acknowledge assent to the CSA. Id. A customer cannot activate Bluelink services through the Dealer-Assisted Enrollment process unless they complete the step requiring them to click the box acknowledging they agree to the Bluelink Terms and Conditions. Id.

On 6/5/23, Plaintiff enrolled the Vehicle in Bluelink services. (Id. P.P.7, 18-20, Ex.A, B). The CSA that was in effect at the time of Plaintiff's purchase of the Vehicle includes an "Arbitration Agreement" which provides: "(a) Hyundai and you agree to arbitrate any and all disputes and claims between us arising out of or relating to this Agreement, Connected Services, Connected Services Systems, Service Plans, your Vehicle, use of the sites, or products, services, or programs you purchase, enroll in or seek product/service support for, whether you are a Visitor or Customer, via the sites or through mobile application, except any disputes or claims which under governing law are not subject to arbitration, to the maximum extent permitted by applicable law.

This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us subject to arbitration to the fullest extent permitted by law. [...] The agreement to arbitrate otherwise includes, but is not

limited to: claims based in contract, tort, warranty, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising) [...]" (Rao Decl., Ex.B, Section 14.C, p.9 (pdf 19). "[F]or purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication." Condee (2001) 88 CA4th 215, 218. Rather, the Court must only find that the agreement exists, not make an evidentiary determination of the agreement's validity.

Id. at 219. The Court finds that Defendant has properly established the existence of the agreement to arbitrate through the Rao declaration and the fact that Plaintiff does not state that Plaintiff did not enroll in Bluelink Connected Services through the CSA which includes the arbitration agreement at issue. The Federal Arbitration Act (FAA) applies to a written arbitration agreement in a contract involving commerce. See 9 U.S.C. Sec.2. Here, the arbitration provision is written in the CSA and automotive sale contracts necessarily involve interstate commerce because even when used intra-state, "cars are themselves instrumentalities of interstate commerce."

See United States v. Oliver (9 th Cir. 1995) 60 F.3d 547, 550; Sanchez (2015) 61 C4th 899, 906; (Rao Decl., Ex.B, p.9 (pdf 19)). Additionally, the CSA states that "This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision." (Rao Decl., Ex.B, Section 14.C., p.9 (pdf 19)). As such, the FAA controls. See Rodriguez (2006) 136 CA4th 1110, 1122. Under the FAA, an arbitration agreement is "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C.

Sec.

2. Here, no grounds exist to revoke the arbitration agreement. Under California law, the arbitration agreement is also valid. On petition of a party to an arbitration agreement alleging the existence of a written arbitration agreement and that a party to the agreement refuses to arbitrate the subject controversy, the court shall order arbitration if it determines that an agreement to arbitrate exists. CCP 1281.2. Again, a written agreement to arbitrate exists and Plaintiff has refused Defendant's request to submit this matter to arbitration. (Park Decl.

P.2; Rao Decl., Ex.B, Section 14.C.). Under California law, the Court must compel arbitration unless it finds that the right to compel arbitration has been waived by Defendant or grounds exist for revocation of the agreement. See Condee (2001) 88 CA4th 215, 219. Here, there is no evidence that Defendant has waived its right to arbitration nor is there evidence of any ground for revocation of the agreements. As such, Defendant may move to

compel arbitration under the FAA (9 U.S.C. Sec.Sec.1-16) and the California Code of Civil Procedure (CCP 1281, et seq.). Both Defendant and Plaintiff have agreed to arbitrate the disputes which are the subject of this action. The Bluelink CSA provides a basis for Defendant to compel Plaintiff to arbitrate the disputes. A customer accepts a "clickwrap" or "clickthrough" agreement's terms, even in the absence of evidence that the customer has read the terms of the agreement. See Wiseley (9 th Cir. 2017) 2017 WL 4150341; Ftjea (S.D.N.Y. 2012) 841 F.Supp.2d 829, 837; Berman (9 th Cir. 2022) 30 F.4 th 849, 856-857; Oberstein (9 th Cir. 2023) 60 F.4 th 505, 513; Foster (8 th Cir. 2021) 15 F.4 th 860, 863.

Plaintiff has not submitted a declaration disputing that she signed up for the Blue Link Connected Services. (See Rao Decl.). Further, contrary to Plaintiff's assertion, the arbitration in the Bluelink CSA is broad enough to apply to Plaintiff's claims. All of Plaintiff's claims arise out of the Vehicle's Warranty. The arbitration provision in the Bluelink CSA states that the parties agree to arbitrate any and all disputes and claims between them relating to the Vehicle and that the agreement is "intended to be broadly interpreted and to make all disputes and claims between us subject to arbitration to the fullest extent permitted by law" and that the arbitration provision includes claims based in contract, statute, and warranty, including those that arose prior to the execution of the CSA. (See Rao Decl., Ex.B, p.9 (pdf 19)).

Plaintiff's argument that the Bluelink CSA illegally allows Defendant to recover attorney's fees is without merit. The provision merely states that the parties would be entitled to recover attorney's fees pursuant to the same extent as in court. Therefore, if Defendant would be precluded from recovering attorney's fees in a court action, the same law would apply in arbitration. Plaintiff has failed to establish that the arbitration agreements at issue is unconscionable. To invalidate a contract based on unconscionability, Plaintiffs must establish both procedural and substantive unconscionability.

Armendariz (2000) 24 C4th 83, 114. The agreement is not procedurally unconscionable. Contracts of adhesion are generally deemed to be procedurally unconscionable. See OTO, L.L.C. (2019) 8 C5th 111, 126. However, the adhesive nature of a standardized agreement is not dispositive. See Sanchez (2015) 61 C4th 899, 915-916. Rather, courts must evaluate the circumstances under a sliding-scale approach: where procedural unconscionability is minimal, the opposing party must make a correspondingly stronger showing of substantive unconscionability.

Id. At most, minimal procedural unconscionability can be said to exist in this case. Plaintiff enrolled in the CSA through a

checkbox that directly linked to the CSA, providing access to the agreement's complete terms before assent. Plaintiff has not provided a declaration or other evidence establishing that she failed to read Section 14. C. "Binding Arbitration" of the CSA, was unaware of its arbitration requirement, or was prevented from reviewing the CSA before accepting BlueLink. The arbitration provision itself begins with a paragraph in all capital letters which reflects the importance of its contends. Regardless, California law does not require a dealership to separately highlight or call attention to an arbitration clause.

See Sanchez, supra at 914-915. Further, the Bluelink services are optional. (Rao Decl. P.5). Nor is the agreement substantively unconscionable. Public policy favors arbitration. See Brodke (2008) 160 CA4th 1569, 1577. Moreover, arbitration agreements have been held to be valid and enforceable with regard to claims under the Song-Beverly Act. Sanchez, supra at 909-910. Plaintiff's argument that regarding the reduced limitations period in the CSA rendering the arbitration provision unconscionable is without merit as the provision provides that it applies "EXCEPT WHERE PROHIBITED BY LAW." (Rao Decl., Ex.B, Section 14.

B., p.9 (pdf 19)). Similarly, as noted above, the provision regarding Defendant recovering attorney's fees in the CSA merely states that the parties would be entitled to recover attorney's fees pursuant to the same extent as in court. As such, if Defendant would be precluded from recovering attorney's fees in a court action, the same law would apply in arbitration. CONCLUSION The motion is granted. The action is stayed pending the outcome of the arbitration. 9 U.S.C. Sec.3; CCP 1281.4. The Court notes that in violation of CRC 3.1110(f)(4), counsel for both parties have failed to properly electronically bookmark the exhibits attached to the declarations filed in support of their papers.

Counsel for the parties are warned that failure to comply with this rule in the future may result in matters being continued so that papers can be re-filed in compliance with the rule, papers not being considered and/or the imposition of sanctions. | Home -->)" -->