Kielar v. Super. Ct.

Filed 8/16/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ----

MARK KIELAR, C096773

Petitioner, (Super. Ct. No. S-CV- 0048230) v.

THE SUPERIOR COURT OF PLACER COUNTY,

Respondent;

HYUNDAI MOTOR AMERICA,

Real Party in Interest.

ORIGINAL PROCEEDING in mandate. Petition granted. Michael W. Jones, Judge.

Knight Law Group, Roger Kirnos; Gupta Wessler, Jennifer Bennett and Linnet Davis-Stermitz for Petitioner.

No appearance for Respondent.

Horvitz & Levy, John A. Taylor, Jr., Jason R. Litt, Eric S. Boorstin; Bowman and Brooke, Brian Takahashi, Jimmy Y. Park. and Michael C. Foley; for Real Party in Interest.

1

In this extraordinary writ proceeding, Mark Kielar challenges the superior court’s decision to grant Hyundai Motor America’s (Hyundai) motion to compel arbitration of his causes of action for violation of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.; the Song-Beverly Act) and fraudulent inducement arising from alleged mechanical defects in the condition of his 2012 Hyundai Tucson. The superior court’s ruling followed this court’s earlier decision in Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 (Felisilda) and concluded Hyundai—a nonsignatory manufacturer— could enforce the arbitration provision in the sales contract between Kielar and his local car dealership under the doctrine of equitable estoppel. This issue is now on review. In the meantime, we join those recent decisions that have disagreed with Felisilda and conclude the court erred in ordering arbitration. (Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, 968-971 (Montemayor); Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324, 1333-1336, review granted July 19, 2023, S279969 (Ford Motor).) Therefore, we shall issue a preemptory writ of mandate compelling the superior court to vacate its June 16, 2022 order and enter a new order denying Hyundai’s motion. I. BACKGROUND Kielar’s complaint alleges three causes of action for violations of the Song- Beverly Act and two causes of action for fraudulent inducement. The complaint states: “These causes of action arise out of the warranty obligations of Hyundai in connection with a vehicle purchased by [Kielar] and for which Hyundai issued a written warranty.” The complaint further alleges Hyundai and its agents concealed a known engine defect. Hyundai filed a motion to compel arbitration and stay the action until arbitration concludes. Hyundai asserted it was entitled to compel arbitration under Felisilda, which “upheld a trial court’s ruling that the exact same arbitration language in a sales contract provided the car manufacturer the right to compel arbitration as a third party, nonsignatory to the sales contract.”