Kish v. Hyundai Motor America

presiding judge of the court where the litigation is proposed to be filed.

Moving party to give notice.

109 Kersten, M.D. v. Alicia DEMURRER – MOOT Surgery Center, 2026- 01553019

110 Kish v. Hyundai Motor MOTION TO COMPEL ARBITRATION – DENIED America, 2026- 01560834 Defendant Hyundai Motor America (“Defendant”) moves for an order compelling plaintiff Jennifer C. Kish (“Plaintiff”) to arbitrate all claims raised in this action and staying this action pending resolution of arbitration pursuant to two arbitration clauses contained in the Owner’s Handbook & Warranty Information (Owner’s Handbook) and the Bluelink Connected Services Agreement (CSA).

“ ‘Under “both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.” ’ ” (Long v. Provide Commerce, Inc. (2016) Cal.App.4th 855, 861.) “ ‘[G]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate.’ ” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) “ ‘Mutual assent, or consent, of the parties “is essential to the existence of a contract” [citations], and “[c]onsent is not mutual, unless the parties all agree upon the same thing in the same sense” [citation]. “Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.” ’ ” (B.D. v.

Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 943 (“Blizzard”).)

The Owner’s Handbook

While Defendant has attached a copy of the Owner’s Handbook to its counsel’s declaration, there is no evidence that Plaintiff received a copy during the purchase of the subject vehicle. Thus, there is no evidence that Plaintiff assented to Defendant’s unexpressed understanding that Plaintiff would be bound by the arbitration agreement contained in the Owner’s Handbook. Without any evidence showing that Plaintiff received a copy of the Owner’s Handbook, there is no evidence of any manifestation of assent. (See Blizzard, 76 Cal.App.5th at pp. 943-944 [“ ‘In the world of paper contracting, the outward manifestation of assent to the same thing by both parties is often readily established by the offeree’s receipt of the physical contract.’ ”].)

Further, even if there was evidence presented that Plaintiff received the Owner’s Handbook, “ ‘ “an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious.” ’ ” (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 461.) Here, the arbitration provision in the Owner’s Manual starts at page 12 of the lengthy 48 page document and, while it begins with a paragraph that is bolded and all capitalized, the provision is not particularly conspicuous from other parts of the document.

Further, while a consumer purchasing a new vehicle may reasonably anticipate that the sale comes with a warranty, a reasonable consumer is not necessarily aware that the warranty might be contractual in nature. (See Norcia v. Samsung Telecommunications America, LLC (2017) 845 F.3d 1279,1288 [“Language in a written warranty agreement is ‘contractual’ in the sense that it creates binding, legal obligations on the seller, [citation], but a warranty does not impose binding obligations on the buyer.”].)

In light of the above, the Court finds that mutual assent to the Owner’s Handbook is lacking. (Herzog v. Superior Court (2024) 101 Cal.App.5th 1280, 1293-1294 [“ ‘Mutual assent is determined under an objective

standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. The parties’ outward manifestations must show that the parties all agreed “upon the same thing in the same sense.” If there is no evidence establishing a manifestation of assent to the “same thing” by both parties, then there is no mutual consent to contract and no contract formation.’ ”].)

The CSA

As to the CSA, while its arbitration clause purports to apply broadly to any disputes related to the vehicle, the scope of an arbitration clause terns on whether the claims are “rooted” in the contractual relationship between the parties. (Ahern v. Asset Management Consultants, Inc. (2022) 74 Cal.App.5th 675, 692-693.) “[E]ven under a very broad arbitration provision, such as ‘any controversy or claim arising out of or relating to this agreement,’ ” the subject claims must “ ‘ “have their roots in the relationship between the parties which was created by the contract” ’ before they can be deemed to fall within the scope of the arbitration provision.” (Rice v. Downs (2016) 248 Cal.App.4th 175, 188.)

Here, Plaintiff’s causes of action do not arise out of or relate to Plaintiff’s use of the Bluelink services (which include vehicle technology and service functions such as Remote Service Activation, Stolen Vehicle Recovery, and Enhanced Roadside Assistance) to which the CSA applies. Rather, Plaintiff alleges that the vehicle itself suffers from serious electrical defects and nonconformities. Thus, even though the CSA arbitration clause uses broad language, the dispute here does not fall within the provision.

Moreover, the evidence presented by Defendant is insufficient to demonstrate Plaintiff’s assent to arbitrate under the CSA. Defendant submits evidence that Plaintiff was presented with a screen when enrolling in the Bluelink services that would have required Plaintiff to click a box to acknowledge reading and agreeing to the Blue Link Terms & Conditions, with the term “Terms & Conditions” including a hyperlink to the CSA.

Plaintiff could not have enrolled without clicking the box assenting to the CSA.

“[W]hen transactions occur electronically, as here, ‘the consumer is not typically provided a physical copy of the contractual terms. In that context, and in the absence of actual notice, a manifestation of assent may be inferred from the consumer’s actions . . . including, for example, checking boxes and clicking buttons—but any such action must indicate the parties’ assent to the same thing which occurs only when . . . the contractual terms were presented to the consumer in a manner that made it apparent the consumer was assenting to those very terms when checking a box or clicking on a button.’ ” (Doe v.

Massage Envy Franchising, LLC (2022) 87 Cal.App.5th 23, 31.) “Thus, in order to establish mutual assent for the valid formation of an internet contract, a provider must first establish the contractual terms were presented to the consumer in a manner that made it apparent the consumer was assenting to those very terms when checking a box or clicking on a button.” (Sellers, 73 Cal.App.5th at p. 461.) In evaluating the sufficiency of notice, the Court must evaluate “the full context of the transaction.” (Id. at p. 477.)

Massage Envy is instructive. There, the plaintiff, who had an existing membership with a massage franchise location, brought a suit against the franchisor. The franchisor moved to compel arbitration based on an arbitration clause in a “Terms of Use Agreement” to which plaintiff had given general consent while checking in for an appointment. (Id. at pp. 27-29.) The “Terms of Use Agreement” had been hyperlinked but the court found that the plaintiff had not agreed to arbitrate, noting that because she already had a preexisting contractual relationship with the independent massage location, she had no reason to believe that she was entering into another contractual relationship with the franchisor during the check-in process. (Id. at p. 31.)

Similarly, in Herzog, the court held that there was no agreement to arbitrate as part of the plaintiffs’ use of an app, despite the fact that the installation of the app required a user to click a button stating that they agree to the Terms of Use, where “Terms of Use” included a

hyperlink. (101 Cal.App.5th at p. 1290.) Relying on Massage Envy, the Herzog court explained: “here, the G6 App launch was a transaction separate from the transactions the user had already completed in order to acquire the Dexcom G6. Users would have no reason to anticipate encountering during the app launch new contractual terms governing their use of the Dexcom G6, a device they had already acquired with their medical provider's prescription.” (Id. at p. 1300.)

Here, the enrollment in Bluelink services was a separate transaction from the purchase of the vehicle and Plaintiff’s acquisition of an express warranty. Consumers would have no reason to anticipate that the CSA to which they agree would govern their claims regarding the vehicle in general, including warranty claims, when they had already acquired the express warranty in a separate transaction. Further, nothing about the screen presented to consumers upon enrollment in Bluelink services would give consumers reasonable notice that the CSA Terms & Conditions would apply to the vehicle as a whole rather than only to the Bluelink services.

In light of all the above, Defendant has failed to show that Plaintiff’s causes of action related to nonconformities and electrical defects in the subject vehicle fall within the scope of the arbitration agreement in the CSA or that Plaintiff assented to the agreement to arbitrate. Thus, the Motion to Compel Arbitration is DENIED.

Defendant’s unopposed Request for Judicial Notice of the Complaint in this action is GRANTED. (Evid. Code, § 452(d).)

Defendant to give notice.

111 Premier Liberty MOTION FOR SUMMARY Development v. JUDGMENT/ADJUDICATION – The Court will not Nguyen, 2018- issue a tentative on this motion. Additionally, the 01008782 parties are advised that the Court has not yet issued an order on Premier’s motion for summary judgment, the hearing on which was held August 24.