Villalobos v. Mike's Auto Group CA4/3

Filed 9/30/21 Villalobos v. Mike’s Auto Group CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CUAUHTEMOC DELA MORA VILLALOBOS et al., G060400 Plaintiffs and Appellants, (Super. Ct. No. 17CV000386) v. OPINION MIKE’S AUTO GROUP, INC., et al.,

Defendants and Respondents.

Appeal from a judgment of the Superior Court of Monterey County, Marla O. Anderson, Judge. Affirmed. Rosner, Barry & Babbitt, Christopher P. Barry and Arlyn L. Escalante for Plaintiffs and Appellants. No appearance for Defendants and Respondents. * * *

After the trial court confirmed an arbitration award against Cuauhtemoc Dela Mora Villalobos and Azucena Ponce, they appeal from the order compelling the parties to arbitration. Appellants contend that respondent Mike’s Auto Group, Inc. (Mike’s Auto), waived its right to seek arbitration, and that the trial court improperly appointed the arbitrator in violation of Code of Civil Procedure section 1281.6. As discussed below, appellants have not shown reversible error. Accordingly, we affirm. I FACTUAL AND PROCEDURAL BACKGROUND A. Complaint and Mediation On January 27, 2017, appellants filed a complaint against Mike’s Auto and Bay Federal Credit Union (Bay FCU), alleging they had purchased a used 2014 Lexus vehicle by means of an installment sale contract, which Mike’s Auto later assigned to Bay FCU. The complaint alleged the vehicle had substantial preexisting damage, and it sought recission of the sale contract and various other remedies. The complaint noted the contract contained a permissive arbitration clause, and stated that plaintiffs elected to initiate the instant court action, “but will agree to stipulate to arbitration through JAMS, if Defendants wish to resolve this dispute in arbitration.” In March 2017, Mike’s Auto and Bay FCU filed answers, generally denying the allegations and raising numerous affirmative defenses, but did not plead arbitration as an affirmative defense. The court appointed a mediator on June 6, 2017, and on August 24, 2017, the parties participated in a mediation, which did not result in an agreement. B. Motion to Compel Arbitration On September 18, 2017, Mike’s Auto filed a case management statement providing notice it would bring a motion to compel arbitration. The case management statement also acknowledged the vehicle had been inspected.