Xu vs. American Honda Motor Co., Inc.

Here, Defendant Gallo purports to move for partial summary adjudication on the singular issue of a portion of damages that does not completely dispose of Plaintiff’s causes of action.

A party is entitled to recover fees as “damages” only when the party brings an action against a third party as “the natural and probable consequence” of the defendant’s misconduct. (Prentice v. North Am. Title Guar. Corp. (1963) 59 Cal.2d 618, 621.) Contractual attorney’s fees are generally recoverable as costs, not an element of damages. (Code Civ. Proc., § 1033.5(a)(10)(A).). As such, the issue of attorneys’ fees is not a “claim for damages” for which summary adjudication is available.

Further, Defendant Gallo’s motion for summary adjudication is untimely. Code of Civil Procedure 437c(a)(2) requires “Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing.” If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81-day period of notice shall be increased by two court days.” (Id.)

Here, 81 days before the July 23, 2026 hearing is Sunday, May 3, 2026. Because Defendant served the motion by electronic service, the required 81-day notice period is increased by 2 court days, or Thursday, April 30, 2026. Because Defendant Gallo served the motion on May 1, 2026, one day later, Defendant Gallo failed to provide the notice required under section 437c(a)(2). The trial court does not have the authority to “shorten the minimum notice period for hearings on summary judgment motions.” (Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 764). “[W]aiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence.” (Id. at 768). Waiver of minimum notice can only be based on the affirmative assent of the affected parties. (Id.) There is no affirmative assent from Plaintiff here.

For these reasons, the motion is DENIED.

Moving Defendant to give notice. 5 Kang vs. Lucid Group OFF CALENDAR USA, Inc. 6 Xu vs. American Defendant American Honda Motor Co. Inc.’s Petition and Motion to Honda Motor Co., Inc. Compel Arbitration are DENIED.

Plaintiff’s Opposition

Defendant Honda first argues that all allegations in its Petition to Compel Arbitration are deemed admitted because Plaintiff failed to file a response to the petition within 10 days.

Here, Defendant filed a Petition to Compel Arbitration (the “Petition”) on March 5, 2026 (ROA #12) in lieu of filing an answer, which set a hearing date for July 23, 2026. (Code Civ. Proc., § 1281.7). On June 26, 2026, Defendant then filed a notice of hearing and moving memorandum for its petition. (ROA #20).

While Plaintiff did not file a response to the petition 10 days after the petition was served, Plaintiff did file an opposition to Defendant’s motion to compel arbitration on July 7, 2026, which gave Defendant 12 days before the hearing to file a reply (3 more days notice than an opposition to a general motion). Code of Civil Procedure section 1290 provides: “A response shall be served and filed within 10 days after service of the petition.... The time provided in this section for serving and filing a response may be extended by an agreement in writing between the parties to the court proceeding or, for good cause, by order of the court.”

Here, given the rights affected by the petition to compel arbitration, the court finds good cause to consider Plaintiff’s opposition a response to the petition. The court will consider the opposition on the merits. (See e.g., Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847 (court “may consider untimely filed and served response papers, when no prejudice to the petitioner is shown, without an order extending the 10- day time period of section 1290.6.”)

Arbitration Agreement at Issue

Attached as Exhibit 1 to the Petition is a copy of a warranty handbook”), which contains the following provision that provides in part: “Please note that this new vehicle limited warranty contains an arbitration provision that may affect your legal rights, and you agree that, pursuant to the Arbitration Provision contained in this warranty (beginning on page 6) of this booklet, that either you or American Honda Motor Co., Inc. may elect to resolve any dispute by neutral, binding arbitration and not by a court action. See the Arbitration Provision contained (beginning on page 6) of this new vehicle limited warranty for additional information concerning the agreement to arbitrate.” (Petition, Exh. 1 at p. 3).

Page 6 of the Warranty Booklet contains the Agreement to Arbitrate, which provides, in part: “You and we agree that any dispute arising out of or relating to any aspect of the relationship between you and Honda will not be decided by a judge or jury but instead by a single arbitration administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules in effect on the date of delivery of your vehicle to you. This Agreement to Arbitrate includes all claims, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims arising out of your warranty; claims arising before or after this Agreement, such as claims related to statements about our products; claims about the performance, design of 17

our products, or manufacturing of our products; and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. (Petition, Exh. 1, p. 6.)

The Agreement to Arbitrate further provides that Plaintiff could opt-out of arbitration: “You may opt out of arbitration within 30 days after the date of delivery of your vehicle to you by sending a letter to: Honda’s Office of the General Counsel, 1919 Torrance Blvd., Mail Stop CHI-5, Torrance, CA 90501, stating your name, Vehicle Identification Number, and intent to opt out of the arbitration provision. If you do not opt out, then this agreement to arbitrate is binding.” (Id., Exh. 1, p. 7.)

The Existence of an Arbitration Agreement

Here, Defendant argues that the arbitration agreement in the warranty attached as Exhibit 1 to the Petition binds Plaintiff. Plaintiff disputes ever seeing the warranty and challenges Defendant’s burden of establishing that Plaintiff received the warranty that is attached to Exhibit 1 of the Petition.

“An essential element of any contract is the consent of the parties or mutual assent.” (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270; Civ. Code §§ 1550, 1565.) Consent is typically shown by one party’s offer, followed by the other’s acceptance and its communication to the offeror. (Rest. 2d Contracts §§ 22(1), 23-24.)

The question of the sufficiency of the initial burden on a motion to compel arbitration was addressed in Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215. The Condee court held that under California Code of Civil Procedure section 1281.2, a party seeking arbitration must allege to the existence of an agreement to arbitrate and attach a copy of the agreement to the petition or, alternatively, set forth the provisions verbatim in the petition. (Condee, at p. 218.) The court in Condee determined the parties seeking arbitration had properly alleged the existence of an arbitration agreement by attaching a copy of the agreement. (Condee, supra, 88 Cal.App.4th at p. 219.)

It also concluded the parties seeking arbitration were not required to follow the normal procedures of document authentication and noted that section 1281.2 “does not require the petitioner to introduce the agreement into evidence.” (Condee, at pp. 218-219.) Furthermore, the court determined the trial court erred in denying the petitions to compel arbitration for failure to authenticate the arbitration agreement when the authenticity of the signature on the document was never challenged. (Ibid.)

Subsequent cases have considered Condee and analyzed in more detail the initial burden that section 1281.2 places on the party seeking arbitration. For example, in Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836 (Ruiz), the court held: “Properly understood, Condee holds that a petitioner is not required to authenticate 18

an opposing party's signature on an arbitration agreement as a preliminary matter in moving for arbitration or in the event the authenticity of the signature is not challenged.” (Id. at p. 846.) However, once the authenticity was challenged, the party seeking arbitration “had the burden of proving by a preponderance of the evidence that the electronic signature was authentic.” (Ibid.)

For example, in Ruiz, the court found “[though] Ruiz did not deny that the electronic signature on the 2011 agreement was his, he claimed he did not recall signing the 2011 agreement and would not have signed it had it been presented to him.” (Id. at 846). The court found that Ruiz’s testimony that he did not recall signing the agreement was sufficient to constitute a challenge to the authenticity of the agreement, such that the burden shifted to the defendant to prove by a preponderance of the evidence that the signature was authentic. (Ibid.)

The court affirmed the trial court’s denial of the petition to compel arbitration, finding that defendant’s business manager’s declaration was insufficient as it merely “summarily asserted” that plaintiff-employee electronically signed the agreement. (Id. at 839). The court found that the declaration was insufficient because the manager did not explain how, or on what basis, the manager inferred that the electronic signature was “the act of” the plaintiff-employee; that the date and time printed on the agreement were accurate; that the electronic signature could only have been placed on the agreement by a person using the plaintiff-employee's unique identification number and password; and that the agreement was therefore signed by the plaintiff. (Id. at p. 844.)

Here, there is no evidence Plaintiff signed the arbitration provision or the Warranty Handbook or signed an acknowledgement of receipt of the Warranty Handbook. There is no evidence the Warranty Handbook was even presented to Plaintiff prior to, or after, purchase or that Plaintiff even reviewed the Warranty before filing this action. There is no declaration by a representative of Defendant stating that the Warranty Handbook that is attached as Exhibit 1 to the Petition, was, in fact, provided to Plaintiff.

While Defendant may have met its initial burden by attaching a copy of the Warranty Handbook with the arbitration agreement, Plaintiff’s declaration that no one at the dealership handed him a separate warranty booklet or asked Plaintiff to sign any document to acknowledge receipt of the Warranty Handbook is sufficient under Ruiz to shift the burden back to Defendant to provide admissible evidence that an arbitration agreement did, in fact, exist between the parties.

Defendant urges the court to follow Kostandian v. American Honda Motor Co., Inc. (2026) 120 Cal.App.5th 872, 876, a recently decided case in which the court of appeal upheld the enforceability of an arbitration provision in a warranty booklet with the same language as the one purportedly established here.

Notably, in Kostandian, the court relied on evidence that “Appellants presented a document, the final inspection at delivery sheet, showing 19

respondent provided his signature and initials confirming his receipt of the owner's manual and warranty information.” (Id. at 882 (emphasis added)). Based on these facts, the court of appeal held that “appellants satisfied their initial burden of establishing an arbitration agreement as to American Honda Motor. Appellants presented a copy of the agreement, stated the relevant terms thereof verbatim, and provided the necessary allegations.” (Id.) No such evidence has been presented here that Plaintiff was presented with the warranty booklet or that Plaintiff provided his signature and initials confirming Plaintiff’s receipt of the warranty.

Defendant contends that Plaintiff is bound by the allegations of the complain—i.e., that “Defendant provided an express written warranty relating to the VEHICLE.” (Complaint, ¶ 6). While Plaintiff alleges that Defendant provided an express written warranty with the purchase of the vehicle, there is insufficient evidence that Plaintiff actually received the warranty booklet that is attached as Exhibit 1 to the Petition.

In analogous cases, where an employee has signed an employment agreement that is separate and distinct from an employee handbook, courts have found that an arbitration agreement in the employee handbook does not create mutual assent. The court finds that the reasoning in those cases are persuasive to the facts here. As one court explained, “[t]o support a conclusion that an employee has relinquished his or her right to assert an employment-related claim in court, there must be more than a boilerplate arbitration clause buried in a lengthy employee handbook given to new employees.

At a minimum, there should be a specific reference to the duty to arbitrate employment-related disputes in the acknowledgment of receipt form signed by the employee at commencement of employment.” (Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 791; Compare with Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 381 [employee's acknowledgement of receipt of employee handbook containing arbitration provision was sufficient to demonstrate an agreement to arbitrate]).

Here, there is no evidence that Plaintiff acknowledged receipt of the warranty, let alone was made aware of any specific reference to the optout arbitration agreement.

Defendant’s argument under doctrine of equitable estoppel also fails. Defendant argues that Plaintiff is equitably estopped from disclaiming the arbitration clause because “a litigant may not assert claims based on a contract while simultaneously arguing that an arbitration clause in that contract is ineffective,” citing Norcia v. Samsung Telecommunications America, LLC (9th Cir. 2017) 845 F.3d 1279, 1284.

The difference here is that Defendant failed to show the Warranty Handbook is an enforceable contract. It should be noted that warranties are different from contracts. Warranties, unlike contracts, do not impose binding obligations on the buyer. (See Weinstat v. Dentsply Int’l, 20

Inc. (2010) 180 Cal.App.4th 1213, 1228-1229.) “A warranty relates to the title, character, quality, identity, or condition of the goods. The purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 20.) Based on those warranties, the seller is bound to deliver and the buyer to accept goods that match the warranties made. (Ibid.)

Written warranties are merely a written statement of promises made to the consumer prior to a purchase, which constitute a declaration of the facts presented or promises made to the consumer in connection with the sale of a good. (Commercial Code, § 2313; Civil Code, §§ 1791.2, 1790.3; 15 U.S.C. § 2301(6).) While the seller may be held to the promises/warranties it made to a consumer prior to the sale of a vehicle, the written warranties do not constitute a contract between the manufacturer and the buyer. Rather, it is the retail installment sales contract that evidences the transaction.

For these reasons, the court finds that Defendant has failed to establish that an enforceable arbitration agreement exists between Defendant and Plaintiff as it relates to the Owner’s Warranty.

The motion is DENIED.

Case Management Conference is continued to October 29, 2026 at 09:00 am in Department C10.

Defendant to give notice. 7 Provenzano Motion 1. Motion to Compel Responses to Special Interrogatories vs. Oremor Automotive Motion 2. Motion to Compel Responses to Form Interrogatories Group, LLC Motion 3. Motion to Compel Responses to Requests for Production of Documents Motion 4. Motion to Deem Requests for Admission Admitted

The Court GRANTS Plaintiff ONM Environmental, Inc.’s motions to compel verified responses from Defendant Oremor Automotive Group, LLC to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One).

The Court GRANTS Plaintiff ONM Environmental, Inc.’s motion to deem Requests for Admission (Set One) admitted by Defendant Oremor Automotive Group, LLC.

A party may move for an order compelling responses to discovery at any time “[i]f a party to whom [discovery requests] are directed fails to serve a timely response.” (Code Civ. Proc., §§ 2030.290(b), 2031.300(b).) For a motion to compel initial discovery responses, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.) 21