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Filed 8/16/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

MARK KIELAR,

Petitioner,

v.

THE SUPERIOR COURT OF PLACER COUNTY,

Respondent;

HYUNDAI MOTOR AMERICA,

Real Party in Interest.

C096773

(Super. Ct. No. S-CV0048230)

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.
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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 SongBeverly 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.”
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The sales contract between Kielar and the dealership referred to the dealership as

the “creditor-seller,” “we,” or “us.” Hyundai was not a party to the agreement. The 

arbitration provision provides: “Any claim or dispute, whether in contract, tort, statute or 

otherwise (including the interpretation and scope of this Arbitration Clause, and the 

arbitrability of the claim or dispute), between you and us or our employees, agents, 

successors or assigns, which arises out of or relates to your credit application, purchase or 

condition of this vehicle, this contract or any resulting transaction or relationship 

(including any such relationship with third parties who do not sign this contract) shall, at 

your or our election, be resolved by neutral, binding arbitration and not by a court 

action.” 

The trial court followed Felisilda and granted Hyundai’s motion to compel 

arbitration based on the doctrine of equitable estoppel. The court explained Kielar’s

claims “arise from purported mechanical defects in the condition of the 2012 Hyundai 

Tucson [Kielar] purchased, purportedly violating various express and implied warranties 

along with allegedly concealing manufacturing defects. These allegations are directly 

related to the condition of the vehicle manufactured by Hyundai, falling expressly within 

the terms of the arbitration provision agreed to by [Kielar]. Moreover, [Kielar] expressly 

agreed to arbitrate with nonparty signatories regarding claims relating to the condition of 

the vehicle. [Kielar] is estopped from refusing to arbitrate these claims with Hyundai.” 

Kielar filed this petition for writ of mandate challenging the trial court’s order 

compelling arbitration. We issued an order to show cause in September 2022. 

II. DISCUSSION

A. Propriety of Writ Review

Hyundai argues we should discharge the order to show cause because Kielar has 

an adequate remedy at law. “Generally[,] the availability of an appeal constitutes an 

adequate remedy at law precluding writ relief.” (Kawasaki Motors Corp. v. Superior 
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Court (2000) 85 Cal.App.4th 200, 205-206.) An order directing arbitration “is reviewed 

on appeal from the judgment entered after the arbitration is completed or in exceptional 

circumstances . . . by writ of mandate.” (Muao v. Grosvenor Properties, Ltd. (2002) 99 

Cal.App.4th 1085, 1088-1089.) “[R]eviewing an order compelling arbitration by writ 

should be done sparingly and only in an appropriate circumstance to avoid defeating the 

purpose of the arbitration statute.” (Cortez v. Doty Bros. Equipment Co. (2017) 15 

Cal.App.5th 1, 10.) “California courts have held that writ review of orders compelling 

arbitration is proper in at least two circumstances: (1) if the matters ordered arbitrated fall 

clearly outside the scope of the arbitration agreement[,] or (2) if the arbitration would 

appear to be unduly time consuming or expensive.” (Zembsch v. Superior Court (2006) 

146 Cal.App.4th 153, 160.) Kielar does not demonstrate his arbitration would be unduly 

time consuming or expensive and, given the split of authority on the issue, we cannot 

conclude the matters ordered arbitrated clearly fall outside the scope of the arbitration 

agreement. Clarity on this issue will not come until our Supreme Court provides it. 

Nonetheless, the petition presents unusual circumstances justifying writ review and we 

decline to discharge the order to show cause.

B. Standard of Review

“The standard of review for an order on a petition to compel arbitration is either 

substantial evidence where the trial court’s decision on arbitrability was based upon the 

resolution of disputed facts, or de novo where no conflicting extrinsic evidence was 

admitted in aid of interpretation of the arbitration agreement.” (Hartnell Community 

College Dist. v. Superior Court (2004) 124 Cal.App.4th 1443, 1448-1449.) The issues 

we address in this opinion are ones we review de novo.

C. Equitable Estoppel

Kielar argues the trial court incorrectly held equitable estoppel allows Hyundai to 

rely on his sales contract with his dealership to force his claims against Hyundai into 

arbitration. We agree. 
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The doctrine of equitable estoppel is an exception to “ ‘the general rule that a 

nonsignatory to an agreement cannot be compelled to arbitrate and cannot invoke an 

agreement to arbitrate, without being a party to the arbitration agreement.’ [Citations.] 

[¶] . . . Under that doctrine, as applied in ‘both federal and California decisional 

authority, a nonsignatory defendant may invoke an arbitration clause to compel a 

signatory plaintiff to arbitrate its claims when the causes of action against the 

nonsignatory are “intimately founded in and intertwined” with the underlying contract 

obligations.’ [Citations.] ‘By relying on contract terms in a claim against a nonsignatory

defendant, even if not exclusively, a plaintiff may be equitably estopped from repudiating 

the arbitration clause contained in that agreement.’ [Citations.] ‘The rule applies to 

prevent parties from trifling with their contractual obligations.’ ” (JSM Tuscany, LLC v. 

Superior Court (2011) 193 Cal.App.4th 1222, 1236-1237.) “[M]erely ‘mak[ing] 

reference to’ an agreement with an arbitration clause is not enough.” (Goldman v. 

KPMG, LLP (2009) 173 Cal.App.4th 209, 218.) “ ‘ “[T]he plaintiff’s actual dependence 

on the underlying contract in making out the claim against the nonsignatory . . . is . . . 

always the sine qua non of an appropriate situation for applying equitable estoppel.” ’ 

[Citations.] ‘[E]ven if a plaintiff’s claims “touch matters” relating to the arbitration 

agreement, “the claims are not arbitrable unless the plaintiff relies on the agreement to 

establish its cause of action.” ’ ” (Jensen v. U-Haul Co. of California (2017) 18 

Cal.App.5th 295, 306, emphasis omitted.) “[B]ut-for causation” alone is insufficient. 

(DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1356-1357.) 

Kielar does not rely on any terms of the sales contract with his dealership to 

establish any of his causes of action. Hyundai does not argue otherwise.1 Rather, 

1

 Hyundai argues the remedies sought by Kielar are intertwined with the sales contract 

because, for instance, it is required to demonstrate the availability of restitution or 

rescission. This assertion is unavailing. “[T]he correct analysis is whether Plaintiffs 
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Hyundai’s assertion that Kielar’s claims are founded on or intimately connected with the 

sales contract relies on Felisilda. In that case, the Felisildas filed a complaint against a

dealership and a manufacturer alleging a violation of the Song-Beverly Act based on the 

manufacturer’s express warranties. (Felisilda, supra, 53 Cal.App.5th at p. 491.) The 

Felisildas and the dealership had entered into a sales contract with an identical arbitration 

provision to the one at issue in this proceeding. (Id. at p. 490.) The dealership moved to 

compel arbitration of the entire matter, including as to the nonsignatory manufacturer. 

(Id. at p. 491.) In affirming the superior court’s decision to order the entire case to 

arbitration based on the doctrine of equitable estoppel, a panel of this court explained

“the sales contract was the source of the warranties at the heart of this case.” (Id. at 

p. 496.) We join Ford Motor and Montemayor in disagreeing with this statement and 

concluding equitable estoppel does not apply in this situation. (Montemayor, supra, 92 

Cal.App.5th at pp. 968-971; Ford Motor, supra, 89 Cal.App.5th at pp. 1333-1336, rev. 

granted.) 

Kielar’s complaint alleges “Hyundai issued a written warranty.” This warranty 

was not part of his sales contract with the dealership. Indeed, the sales contract 

acknowledges this separate warranty and disclaims any implied warranties by the 

dealership: “If you do not get a written warranty, and the Seller does not enter into a 

service contract within 90 days from the date of this contract, the Seller makes no 

warranties, express or implied, on the vehicle, and there will be no implied warranties of 

merchantability or of fitness for a particular purpose. [¶] This provision does not affect 

would have a claim independent of the existence of the Purchase Agreement (equitable 

estoppel applies ‘when the signatory must rely on the terms of the written agreement in 

asserting its claims against the nonsignatory,’ [citation] or ‘when the causes of action

against the nonsignatory are intimately founded in and intertwined with the underlying 

contract obligations,’ [citation] not whether the court must look to the Purchase 

Agreement to ascertain the requested relief. The emphasis of the case law is 

unmistakably on the claim itself, not the relief.” (Kramer v. Toyota Motor Corp. (9th Cir. 

2013) 705 F.3d 1122, 1131-1132.)
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any warranties covering the vehicle that the vehicle manufacturer may provide.”2 In 

Ford Motor and Montemayor, Ford Motor Company moved to compel arbitration of the 

same type of claims at issue in this proceeding based on “the same form arbitration 

provision” in the plaintiffs’ sales contract with dealerships. (Ford Motor, supra, 89 

Cal.App.5th at p. 1333, rev. granted; see also Montemayor, supra, 92 Cal.App.5th at 

p. 968.) These sales contracts also included the same disclaimer regarding warranties. 

(Montemayor, supra, at p. 962; Ford Motor, supra, at p. 1335.) These authorities 

explained Felisilda’s statement that “the sales contract was the source of the warranties” 

was flawed because “manufacturer vehicle warranties that accompany the sale of motor 

vehicles without regard to the terms of the sale contract between the purchaser and the 

dealer are independent of the sale contract.” (Ford Motor, supra, at p. 1334; accord 

Montemayor, supra, at p. 969; see also Ngo v. BMW of North America, LLC (9th Cir. 

2022) 23 F.4th 942, 949 [“the express and implied warranties arise ‘independently of a 

contract of sale’ ”].) Whether a manufacturers’ express or implied warranties that 

accompany a vehicle at the time of sale constitute obligations arising from the sale 

contract, permitting manufacturers to enforce an arbitration agreement in the contract 

pursuant to equitable estoppel is a question now pending before our Supreme Court. In 

the meantime, we agree with Montemayor and Ford Motor that they do not. 

Additionally, we agree with Montemayor and Ford Motor that the parenthetical 

language in the arbitration provision referring to nonsignatory third parties “was a 

‘delineation of the subject matter of claims the purchasers and dealers agreed to 

arbitrate’ ” and does not bind the purchaser “ ‘to arbitrate with the universe of unnamed 

2

 “Unless disclaimed in the manner prescribed by this chapter, every sale of consumer 

goods that are sold at retail in this state shall be accompanied by the manufacturer’s and 

the retail seller’s implied warranty that the goods are merchantable.” (Civ. Code, 

§ 1792.)
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third parties.’ ” (Montemayor, supra, 92 Cal.App.5th at p. 971, quoting Ford Motor, 

supra, 89 Cal.App.5th at p. 1335, rev. granted.) 

For these reasons, the trial court erred in ordering arbitration.

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III. DISPOSITION

Let a peremptory writ of mandate issue directing respondent superior court to 

vacate its June 16, 2022 order granting Hyundai Motor America’s motion to compel 

arbitration and stay the action, and enter a new order denying the motion. Mark Kielar 

shall recover his costs in this original proceeding. (Cal. Rules of Court, rule 

8.493(a)(1)(A).)

/S/

 

RENNER, J.

We concur:

 /S/ 

EARL, P.J.

/S/

 

HULL, J.

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 As a result of this conclusion, we need not address the other arguments raised in 

Kielar’s petition.