Filed 3/15/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DAMIEN T. DAVIS et al.,

Plaintiffs and Respondents,

v.

NISSAN NORTH AMERICA, INC., 

et al.,

Defendants and Appellants.

 D083006

 (Super. Ct. No. CVRI2203733)

APPEAL from an order of the Superior Court of Riverside County, 

Eric A. Keen, Judge. Affirmed.

Shook Hardy & Bacon, Amir M. Nassihi, Nalani L. Crisologo and 

Andrew L. Chang for Defendants and Appellants.

The Lemon Pros, Arash Khorsandi, Michael Saeedian and 

Christopher Urner for Plaintiffs and Respondents.

Defendants Nissan North America, Inc., a vehicle manufacturer, and 

Nissan of San Bernardino, an authorized vehicle repair facility (collectively 

“Nissan” or “Nissan defendants”), challenge an order denying their motion to 

compel arbitration of claims asserted against them by plaintiffs Damien T. 

Davis and Johnetta H. Lane, buyers of a new Nissan vehicle with an 
2

allegedly defective transmission. The trial court ruled that the Nissan

defendants, who were not parties to the sale contract between plaintiffs and

the dealership containing the arbitration clause, could not invoke the clause 

to compel arbitration based on the doctrine of equitable estoppel. In so 

ruling, the trial court declined to apply the holding of Felisilda v. FCA US 

LLC (2020) 53 Cal.App.5th 486 (Felisilda). Since the trial court’s ruling, four 

published Court of Appeal decisions have rejected Felisilda and the Supreme 

Court has granted review to resolve the conflict. We now join the more recent 

line of authorities. Accordingly, we affirm the order denying Nissan’s motion 

to compel arbitration. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Sale Contract and Warranty

Plaintiffs signed a retail installment sale contract to buy a new Nissan 

Altima from Riverside Nissan, a vehicle dealership not a party to this 

lawsuit. The contract identified the plaintiffs as “Buyer” and “you” and 

identified Riverside Nissan as “Seller,” “we,” and “us.” The sale contract was 

on a standard form created by the Reynolds and Reynolds Company and 

designated as Form No. 553-CA-ARB. The Nissan defendants were not 

parties to the sale contract.

The contract contained the following provision about warranties:

“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 any warranties covering the 

vehicle that the vehicle manufacturer may provide. If the 

Seller has sold you a certified used vehicle, the warranty of 

merchantability is not disclaimed.” 
3

The contract also contained the following arbitration provision:

“EITHER YOU OR WE MAY CHOOSE TO HAVE ANY 

DISPUTE BETWEEN US DECIDED BY ARBITRATION 

AND NOT IN COURT OR BY JURY TRIAL.

[¶] . . . [¶]

“Any claim or dispute, whether in contract, tort, statute or

otherwise (including the interpretation and scope of this 

Arbitration Provision, and the arbitrability of this 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.” 

Defendant Nissan North America, Inc. manufactured the car plaintiffs 

bought and provided a written manufacturer’s warranty.1 Nissan North 

America, Inc. authorizes certain facilities, including defendant Nissan of San 

Bernardino, to repair defects in its vehicles that arise during the warranty 

period, provides training to such facilities on how to make repairs, and 

reimburses those facilities for the repair costs. 

Plaintiffs’ complaint alleges that Nissan’s warranty was “attached to 

the vehicle itself . . . at the time of manufacturing and/or distribution,” it did 

“not arise out of the Purchase of the vehicle,” and its benefits apply “to any 

registered owner of the vehicle regardless of whether the vehicle is 

1 The record does not include a copy of the warranty. “Warranties made 

in connection with the sale of new motor vehicles are usually to the effect 

that the vehicle will be free from defects for a specified period of time or miles 

of use.” (4 Witkin, Summary of Cal. Law (11th ed. 2023) Sales, § 64.)
4

purchased, leased, or provided as a gift to the owner and irrespective of any 

terms of the Purchase contract.” 

B. Vehicle Defects and Repair Attempts

Plaintiffs repeatedly experienced a lack of power and acceleration while 

driving their Altima and took it four times to Nissan of San Bernardino for 

repairs. On the first three occasions, plaintiffs were told no defects were 

found, but on the last, they were told the transmission was defective and 

needed to be replaced. 

C. Complaint

Based on the Altima’s defective transmission, plaintiffs sued the 

Nissan defendants, but not the dealership. They asserted the following three 

claims against Nissan North America, Inc. for violations of the Song-Beverly 

Consumer Warranty Act (Song-Beverly Act or Act; Civ. Code, § 1790 et seq.): 

(1) breach of express warranty; (2) breach of implied warranty; and (3) breach 

of duty to provide service or repair to conform the vehicle to manufacturer 

warranties (Civ. Code, § 1793.2, subd. (b)). Plaintiffs also asserted a claim of 

negligent repair against both Nissan defendants. They prayed for damages, 

rescission of the sale contract, restitution, civil penalty, interest, costs, and 

attorney fees. 

D. Motion to Compel Arbitration

The Nissan defendants moved to compel arbitration and stay the 

action. (Code Civ. Proc., §§ 1281.2, 1281.4.) Relying on Felisilda, supra, 53 

Cal.App.5th 486, they argued that even though they were not parties to the 

sale contract containing the arbitration clause, they could compel arbitration 

under the doctrine of equitable estoppel because plaintiffs’ claims were based 

on warranties they received as part of the sale. They also argued that they 
5

could enforce the arbitration clause as third-party beneficiaries of the sale 

contract. 

Plaintiffs opposed the motion. In relevant part, they argued that the 

doctrine of equitable estoppel did not apply because their claims did not arise 

out of or depend on the sale contract, and the Nissan defendants were not 

third-party beneficiaries entitled to enforce the arbitration clause of the sale 

contract. 

The trial court denied the motion to compel arbitration. Relying on the 

Ninth Circuit’s decision in Ngo v. BMW of North America, LLC (9th Cir. 

2022) 23 F.4th 942 (Ngo), the court ruled that Felisilda did not apply “where 

the dealership is not a party to the action.” The court also found Ngo “to be 

the better reasoned opinion based on the fact that the manufacturer’s duty 

relating to the warranty is independent to the sales contract.” The court 

further noted that the sale contract expressly disclaimed any seller 

warranties, while also stating that the disclaimer did not affect any 

warranties “ ‘the vehicle manufacturer may provide.’ ” The court concluded 

that the sale contract thus “treats warranties as a separate provision.” The 

court also ruled that the Nissan defendants were not third-party beneficiaries 

of the sale contract. 

DISCUSSION

Nissan has expressly abandoned its third-party beneficiary theory on 

appeal, but argues that the trial court erred by declining to apply Felisilda

and refusing to compel arbitration based on equitable estoppel. Plaintiffs 

contend that the trial court’s equitable estoppel ruling was correct and urge 

us to follow more recent caselaw rejecting Felisilda. Recognizing that this 
6

issue is currently pending before the Supreme Court, we agree with the more 

recent authorities.2

A. Standard of Review

Because the material facts are undisputed, we review de novo whether 

the trial court correctly applied the doctrine of equitable estoppel in denying 

Nissan’s motion to compel arbitration. (Goldman v. KPMG, LLP (2009) 173 

Cal.App.4th 209, 226, fn. 9 (Goldman).)

B. Governing Law on Equitable Estoppel

Although there is a strong public policy in favor of arbitration, there is 

no policy compelling anyone to accept arbitration of controversies which they 

have not agreed to arbitrate. (Victoria v. Superior Court (1985) 40 Cal.3d 

734, 744.) Because arbitration is a matter of contract, the basic rule is that 

one must be a party to an arbitration agreement to be bound by it or invoke 

it—with limited exceptions. (DMS Services, LLC v. Superior Court (2012) 

205 Cal.App.4th 1346, 1352.)

One such exception is the doctrine of equitable estoppel. Equitable 

estoppel precludes a party from asserting rights they otherwise would have 

had against another when their own conduct renders assertion of those rights 

inequitable. (Goldman, supra, 173 Cal.App.4th at p. 220.) As applied in the 

arbitration context, “if a plaintiff relies on the terms of an agreement to 

assert his or her claims against a nonsignatory defendant, the plaintiff may 

be equitably estopped from repudiating the arbitration clause of that very 

agreement. In other words, a signatory to an agreement with an arbitration 

clause cannot ‘have it both ways’; the signatory ‘cannot, on the one hand, seek 

2 We reject plaintiffs’ contention that Nissan forfeited its claims of error 

by omitting unfavorable facts from the opening brief. The opening brief 

includes a fair summary of the significant facts. (Cal. Rules of Court, rule 

8.204(a)(2)(C).) 
7

to hold the non-signatory liable pursuant to duties imposed by the 

agreement, which contains an arbitration provision, but, on the other hand, 

deny arbitration’s applicability because the defendant is a non-signatory.’ ” 

(Ibid., internal quotation marks omitted.) 

“[T]he sine qua non for application of equitable estoppel as the basis for 

allowing a nonsignatory to enforce an arbitration clause is that the claims the 

plaintiff asserts against the nonsignatory must be dependent upon, or 

founded in and inextricably intertwined with, the underlying contractual 

obligations of the agreement containing the arbitration clause.” (Goldman,

supra, 173 Cal.App.4th at pp. 217–218.) “ ‘[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.’ ” (Fuentes v. TMCSF, Inc. (2018) 26 Cal.App.5th 

541, 552, internal quotation marks omitted.) “This requirement comports 

with, and indeed derives from, the very purposes of the doctrine: to prevent a 

party from using the terms or obligations of an agreement as the basis for his 

claims against a nonsignatory, while at the same time refusing to arbitrate 

with the nonsignatory under another clause of that same agreement.” 

(Goldman, at p. 221.)

The mere fact that the plaintiff’s complaint makes reference to an 

agreement with an arbitration clause is not enough to establish equitable 

estoppel. (Goldman, supra, 173 Cal.App.4th at p. 218.) Nor is it sufficient 

that the plaintiff’s complaint presumes the existence of a contract that 

contains an arbitration clause. (Id. at p. 231.) The “underlying principle” in 

all cases is that there must be “actual reliance on the terms of the agreement 

to impose liability on the nonsignatory.” (Ibid., italics added.) Actual 

reliance in this context means that the plaintiff’s substantive claims against 
8 

the non-signatory must be “founded in and inextricably bound up with the 

obligations imposed by the agreement containing the arbitration clause.”3 

(Id. at p. 219.) 

 C. Analysis of Equitable Estoppel Issue

 Nissan is not a party to either the vehicle sale contract or the 

arbitration provision contained within it. By its terms, the sale contract is 

solely between “you” (the plaintiffs) and “us” (the dealership) and its 

arbitration provision applies only to disputes “between you and us or our 

employees, agents, successors or assigns.” Nissan concedes that it is not a 

party to the contract or its arbitration clause—but argues that it is 

nevertheless entitled to compel arbitration under the Third District’s 2020 

decision on equitable estoppel in Felisilda. 

 In Felisilda, the plaintiffs purchased a vehicle through the dealership. 

(Felisilda, supra, 53 Cal.App.5th at pp. 489–491.) The plaintiffs signed the 

same form sale contract with the dealership as the one at issue here, 

including the arbitration clause. (Id. at p. 490.) After their vehicle 

3 In the arbitration context, California courts have not applied the four 

traditional elements for equitable estoppel: (1) the party to be estopped must 

be apprised of the facts; (2) he must intend that his conduct shall be acted 

upon, or must so act that the party asserting the estoppel has a right to 

believe it was so intended; (3) the other party must be ignorant of the true 

state of facts; and (4) the other party must rely upon the conduct to his 

injury. (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.) In the 

absence of these traditional elements, including detrimental reliance, other 

jurisdictions have rejected such an arbitration-specific version of equitable 

estoppel. (See Santich v. VCG Holding Corp. (Colo. 2019) 443 P.3d 62, 65–66; 

Hirsch v. Amper Financial Services, LLC (N.J. 2013) 71 A.3d 849, 857–860; 

Warciak v. Subway Rests., Inc. (7th Cir. 2018) 880 F.3d 870, 872 [applying 

Illinois law]; Scheurer v. Fromm Family Foods LLC (7th Cir. 2017) 863 F.3d 

748, 752–753 [applying Wisconsin law].) We do not decide this issue because 

it has not been briefed by the parties. 
9

experienced mechanical problems, the plaintiffs sued both the dealership and 

the manufacturer, asserting a single claim for violation of the Song-Beverly 

Act based on express warranties. (Id. at pp. 490–491.) 

Invoking the arbitration clause of the sale contract, the dealership 

moved to compel arbitration of the entire matter, including the claim against 

the nonsignatory manufacturer. (Felisilda, supra, 53 Cal.App.5th at p. 491.) 

The manufacturer filed a notice of non-opposition. (Ibid.) After the trial 

court compelled arbitration of the claims against both the dealership and the 

manufacturer, the plaintiffs eventually appealed from a judgment confirming 

the arbitration award, arguing that the trial court had erred by compelling 

arbitration of the claim against the manufacturer. (Id. at pp. 489, 492.)

Applying the doctrine of equitable estoppel, the Third District ruled 

that the trial court had correctly compelled arbitration of the claim against 

the nonsignatory manufacturer. (Felisilda, supra, 53 Cal.App.5th at pp. 495–

499.) The court relied heavily on the language of the arbitration clause 

requiring arbitration of disputes between the plaintiffs and the dealership 

arising out of or relating to the “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) . . . .” (Felisilda, at pp. 490, 496–

498.) The court concluded: “Because the [plaintiffs] expressly agreed to 

arbitrate claims arising out of the condition of the vehicle – even against 

third party nonsignatories to the sales contract – they are estopped from 

refusing to arbitrate their claim against [the manufacturer].” (Id. at p. 497; 

see also ibid. [“the arbitration provision in this case provides for arbitration 

of disputes that include third parties so long as the dispute pertains to the 

condition of the vehicle”]; id. at p. 498 [stating that the arbitration provision 

included “an express extension of arbitration to claims involving third parties 
10

that relate to the vehicle’s condition”]; ibid. [stating that plaintiffs’ 

“agreement to the sales contract constituted express consent to arbitrate 

their claims regarding vehicle condition even against third parties”].)

As noted, the trial court here declined to apply Felisilda. Since the 

trial court’s decision, four published California Court of Appeal decisions 

(including one from another panel of the Third District) have rejected the 

holding of Felisilda and the Supreme Court has granted review to resolve the 

conflict. (Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324, review 

granted July 19, 2023, S279969 (Ford Motor); Montemayor v. Ford Motor Co. 

(2023) 92 Cal.App.5th 958, review granted Sept. 20, 2023, S281237

(Montemayor); Kielar v. Superior Court (2023) 94 Cal.App.5th 614, review 

granted Oct. 25, 2023, S281937 (Kielar); Yeh v. Superior Court (2023) 95 

Cal.App.5th 264, review granted Nov. 15, 2023, S282228 (Yeh).) Each of 

these cases involved the same form vehicle sale contract at issue here and in 

Felisilda. Each unanimously declined to compel arbitration of warrantyrelated claims brought against a vehicle manufacturer under the SongBeverly Act.

We agree with the holdings of these recent cases and adopt their 

reasoning as our own. “Equitable estoppel would apply if the plaintiffs had 

sued [Nissan] based on the terms of the sale contract yet denied [Nissan] 

could enforce the arbitration clause in that contract.” (Ford Motor, supra, 89 

Cal.App.5th at p. 1334, review granted.) But equitable estoppel does not 

apply here because plaintiffs are not relying on the terms of the sale contract 

to impose liability on Nissan. (Id. at pp. 1335–1336.) Plaintiffs’ complaint 

does not allege that Nissan breached any obligations under the sale contract 

between them and the dealership. Rather, the complaint alleges violations of 

manufacturer warranties under the Song-Beverly Act and a related tort 
11

claim. Under California law, manufacturer warranties that accompany the 

sale of a vehicle without regard to the substantive terms of the sale contract 

between the buyer and the dealer are independent of the sale contract. (Ford 

Motor, at pp. 1334–1336; Montemayor, supra, 92 Cal.App.5th at p. 969, 

review granted; Kielar, supra, 94 Cal.App.5th at pp. 620–621, review 

granted; Yeh, supra, 95 Cal.App.5th at p. 274, review granted.) 

As in each of these recent cases, the sale contract between plaintiffs 

and the dealership includes “no warranty, nor any assurance regarding the 

quality of the vehicle sold, nor any promise of repairs or other remedies in the 

event problems arise.” (Ford Motor, supra, 89 Cal.App.5th at p. 1335, review 

granted.) “To the contrary, the sale contract[] disclaim[s] any warranty on 

the part of the dealer[], while acknowledging no effect on ‘any warranties 

covering the vehicle that the vehicle manufacturer may provide.’ ” (Ibid.) 

“This differentiation . . . demonstrates an intent to distinguish and distance 

the dealership’s purchase agreement from any warranty that [Nissan] ‘may’ 

provide.” (Jurosky v. BMW of N. Am. (S.D.Cal. 2020) 441 F.Supp.3d 963, 970 

[construing identical disclaimer language under California law]; see also 

Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1122, 1131 (Kramer) 

[same under California law]; Caine v. BMW of N. Am., LLC (S.D.Cal. 2021) 

596 F.Supp.3d 1244, 1251 [same under California law].)

Nissan nevertheless contends that equitable estoppel applies because 

manufacturer warranties are considered part of a retail sale contract under 

Division 2 of the California Uniform Commercial Code (UCC) (Cal. U. Com. 

Code, § 2101 et seq.). Other courts have already rejected similar arguments 

based on the UCC. (Ford Motor, supra, 89 Cal.App.5th at p. 1336 [rejecting 

manufacturer’s argument that equitable estoppel applied because “warranty 

claims are treated like contract claims” under the UCC], review granted; Yeh,
12

supra, 95 Cal.App.5th at p. 275 [holding that “the enactment of the California 

Uniform Commercial Code did not change existing law that manufacturer 

warranties can exist separate from a sales contract”], review granted.) We do 

as well.

Division 2 of the UCC governs the relationship of the parties to a sale, 

and its warranty provisions are limited to warranties given directly by the 

seller to the buyer. The UCC’s express warranty provision by its terms 

applies only to “[e]xpress warranties by the seller . . . .” (Cal. U. Com. Code, 

§ 2313, subd. (1)(a), italics added.) “The section gives a cause of action only 

against ‘the seller.’ ” (White, et al., Uniform Commercial Code (6th ed. 2023) 

§ 10:10.) The UCC defines a “seller” as “a person who sells or contracts to sell 

goods.” (Cal. U. Com. Code, § 2103, subd. (1)(d).) 

As the court noted in Yeh, supra, 95 Cal.App.5th at page 275 (review 

granted), the official UCC comment to the express warranty provision

explicitly states: “Although this section is limited in its scope and direct 

purpose to warranties made by the seller to the buyer as part of a contract for 

sale, the warranty sections of this Article are not designed in any way to 

disturb those lines of case law growth which have recognized that warranties 

need not be confined either to sales contracts or to the direct parties to such a 

contract. They may arise in other appropriate circumstances . . . . [T]he

matter is left to the case law with the intention that the policies of this Act 

may offer useful guidance in dealing with further cases as they arise.” 

(Cal. U. Com. Code, com. 2 to § 2313; see also id., § 1103, subd. (b) [principles

of law and equity supplement UCC].) 

This comment makes clear that although the UCC’s express warranty 

provision applies only to a seller in privity with the buyer, the UCC does not 

disturb non-UCC case law allowing a buyer to sue a manufacturer for breach 
13

of express warranty even in the absence of privity.4 (See, e.g., In re Allergan 

BIOCELL Textured Breast Implants Prods. Liab. Litig. (D.N.J. 2021) 537 

F.Supp.3d 679, 742 [“though privity is required for asserting UCC-based 

express warranty claims,” plaintiffs could still “assert non-UCC-based 

express warranty claims” against manufacturer under Arizona UCC]; see 

also Westport Marina, Inc. v. Boulay (E.D.N.Y. 2010) 783 F.Supp.2d 344, 354, 

fn. 6 [New York UCC did not disturb pre-UCC case law allowing express 

warranty claim against manufacturer in absence of privity]; Sheppard v. 

Revlon, Inc. (Fla.Dist.Ct.App. 1972) 267 So.2d 662, 664 [even in absence of 

sale governed by Florida UCC, non-UCC warranty claim against 

manufacturer could be asserted].)5 

Such manufacturer warranties “arise[] independently of a contract of 

sale between the parties” and “are the product of common-law decisions that 

have recognized them in a variety of situations.” (Greenman v. Yuba Power 

4 Although we have discovered no California case on point, cases from 

other jurisdictions generally hold that (1) a seller is not bound by a 

manufacturer’s express warranty unless the seller has specifically adopted 

the warranty as its own, and (2) the seller does not adopt a manufacturer 

warranty merely by delivering it to the buyer. (Crockett, The Law of Product 

Warranties (2023) § 4:34; see, e.g., Frank Griffin Volkswagen v. Smith 

(Fla.Dist.Ct.App. 1992) 610 So.2d 597, 601; Norman Gershman’s Things to 

Wear, Inc. v. Mercedes-Benz of North America, Inc. (Del.Super.Ct. 1989) 

558 A.2d 1066, 1073; Lytle v. Roto Lincoln Mercury & Subaru, Inc.

(Ill.Ct.App. 1988) 521 N.E.2d 201, 205; Thorpe v. Hammons Sheet Metal Co.

(Mo.Ct.App. 1999) 991 S.W.2d 157, 158; Gilliam v. Indiana National Bank 

(Ala.Civ.App. 1976) 337 So.2d 352, 354; Import Motors, Inc. v. Matthews 

(Tex.Civ.App. 1977) 557 S.W.2d 807, 810.)

5 Because the UCC is a uniform act, we may look to its official comments 

and decisions from other UCC jurisdictions for guidance to interpret its 

provisions uniformly. (Kirzhner v. Mercedes-Benz USA, LLC (2020) 9 Cal.5th 

966, 978.)
14

Products, Inc. (1963) 59 Cal.2d 57, 61 (Greenman); accord, Corporation of 

Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. 

Cavanaugh (1963) 217 Cal.App.2d 492, 514 (Cavanaugh); see also Seely v. 

White Motor Co. (1965) 63 Cal.2d 9, 14 (Seely) [“no privity of contract was 

required” for express warranty claim]; Smith v. Gates Rubber Co. Sales 

Division, Inc. (1965) 237 Cal.App.2d 766, 768 [same].)

The implied warranty provisions of the UCC also apply only to a 

merchant or seller in privity with the buyer. (Cal. U. Com. Code, § 2314 

[implied warranty of merchantability]; id., § 2315 [implied warranty of 

fitness for particular purpose]; Cardinal Health 301, Inc. v. Tyco Electronics 

Corp. (2008) 169 Cal.App.4th 116, 138–139; Mega RV Corp. v. HWH Corp. 

(2014) 225 Cal.App.4th 1318, 1333, fn. 11.) Thus, absent direct dealings 

between the manufacturer and purchaser, manufacturer warranties (express 

or implied) generally fall outside the scope of the UCC and are governed by 

other provisions of law.6 For this reason, we reject Nissan’s argument that 

the UCC treats them as part of the sale contract. 

We find unpersuasive Nissan’s argument that a manufacturer 

warranty is part of the sale contract because the UCC defines a “contract” to 

mean “the total legal obligation that results from the parties’ agreement as 

determined by this code and as supplemented by any other applicable laws.” 

(Cal. U. Com. Code, § 1201, subd. (b)(12).) Read in context, this definition of 

a “contract”—which includes the phrase “the parties’ agreement”—clearly 

refers to the legal obligations of the contracting parties, not strangers to the 

6 On the other hand, when a buyer purchases a product directly from the 

manufacturer, then the manufacturer is also the seller and the manufacturer 

warranties would therefore be part of the sale contract under the UCC. (See, 

e.g., Weinstat v. Dentysply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1225–

1231 [applying UCC to express warranty claims of dentists who purchased 

dental device from manufacturer].) 
15

contract. Like its predecessor, Division 2 of the UCC (Cal. U. Com. Code, 

§ 2101 et seq.) “deals with the rights of the parties to a contract of sale or a 

sale.” (Greenman, supra, 59 Cal.2d at pp. 60–61 [discussing former Uniform 

Sales Act]; see Cal. U. Com. Code, § 1201, subd. (b)(26) [“ ‘Party,’ as 

distinguished from ‘third party,’ means a person that has engaged in a 

transaction or made an agreement subject to this code.”]; Cal. U. Com. Code,

com. to § 2106 (2022 update) [discussing UCC term “contract for sale” in 

terms of “the rights of the parties”].) Here, the Nissan defendants were not

parties to the contract or the vehicle sale. Nissan cites no authority (from 

any UCC jurisdiction) supporting its assertion that the UCC’s definition of a 

contract includes the warranty obligations of a product manufacturer who is 

not even a party to the contract.

We have no quarrel with Nissan’s argument that a seller’s warranty to 

a buyer is treated as part of the parties’ sale contract under the UCC, even if 

it is not included as part of the written contract. (See, e.g., A&M Produce Co. 

v. FMC Corp. (1982) 135 Cal.App.3d 473, 495 [seller’s warranty to buyer was 

part of contract thus supporting award of attorney fees under Civil Code 

section 1717 even though seller’s warranty was not included in written 

contract].) We also agree that the sale contract includes obligations imposed 

on a seller as a matter of law, such as the implied warranty of 

merchantability. (Cal. U. Com. Code, § 2314.) But Nissan’s authorities do 

not establish that the terms of a sale contract include obligations of a nonparty to the transaction, such as “when a manufacturer provides an 

independent warranty, the situation presented here.” (Yeh, supra, 95 

Cal.App.5th at p. 276, review granted.) Although a buyer may receive a 

manufacturer’s warranty as a result of a purchase from a dealership, nothing 
16

in the UCC suggests that this automatically makes the manufacturer’s 

warranty a part of the sale contract between the buyer and the dealership.

Though not cited by Nissan, the dissent contends that the Supreme 

Court in Seely treated a vehicle manufacturer’s warranty as part of the 

buyer’s sale contract with the dealership. We disagree. The primary holding 

in Seely was that damages for lost profits and the purchase price of the 

vehicle were recoverable in an action for breach of express warranty against 

the manufacturer. (Seely, supra, 63 Cal.2d at pp. 13–14.) In deciding this 

damages issue, the court noted that language appearing on the printed 

purchase order form—stating that the manufacturer warranted the vehicle to 

be free from defects—met the statutory definition of an express warranty 

under the former Uniform Sales Act. (Id. at p. 13.) The court also concluded 

that it made no difference whether the consumer was aware that the 

warranty was made by the manufacturer, rather than the dealer. (Id. at 

pp. 13–14.) We do not read Chief Justice Traynor’s opinion in Seely as 

suggesting that a manufacturer’s warranty is part of the sale contract with a 

dealership. It seems unlikely the Supreme Court would have arrived at such 

a conclusion without mentioning its own statement from two years earlier (in 

a unanimous decision also authored by then-Justice Traynor) that 

manufacturer warranties “arise[] independently of a contract of sale between 

the parties.”7 (Greenman, supra, 59 Cal.2d at p. 61.) 

The substantive claims asserted in plaintiffs’ complaint arise under the 

Song-Beverly Act, not the UCC. The Song-Beverly Act, which applies to sales 

of consumer goods, was enacted in 1970 “to provide greater protections and 

7 Nor do we agree with the dissent that other Court of Appeal decisions 

have relied on Seely to hold that an express warranty claim against a vehicle 

manufacturer is governed by the UCC even in the absence of privity. None of 

the cases cited by the dissent expressly considered or decided the issue.
17

remedies for consumers” than the UCC because the UCC had “proved [to be]

‘limited in providing effective recourse to a consumer dissatisfied with a 

purchase.’ ” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 

1303.) Specifically, the Act “was enacted to address the difficulties faced by 

consumers in enforcing express warranties . . . . The Act protects purchasers 

of consumer goods by requiring specified implied warranties, placing strict 

limitations on how and when a manufacturer may disclaim those implied 

warranties, and providing mechanisms to ensure that manufacturers live up 

to the terms of any express warranty.” (Cummins, Inc. v. Superior Court 

(2005) 36 Cal.4th 478, 484.) The Song-Beverly Act supplements rather than 

supersedes the UCC, but it prevails over any conflicting provisions of the 

UCC. (Civ. Code, § 1790.3.)

In contrast to the UCC, the Song-Beverly Act explicitly governs 

manufacturer warranties. (Civ. Code, §§ 1791, subd. (j), 1791.1, subd. (b), 

1791.2, subd. (a)(1), 1791.3, 1792, 1792.1, 1793.) Thus, the Act “applies to 

new motor vehicle manufacturers who make express warranties.” (Jensen v. 

BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 127.) Moreover, 

there is “no privity requirement.” (Ibid.) 

The Act provides that every retail sale of consumer goods shall be 

accompanied by a manufacturer’s implied warranty of merchantability unless 

properly disclaimed. (Civ. Code, § 1792.) It further states that if an express 

warranty is given, the manufacturer “may not limit, modify, or disclaim the 

implied warranties guaranteed by this chapter to the sale of consumer 

goods.” (Id., § 1793.) It also imposes service and repair obligations on 

manufacturers who make express warranties. (Id., § 1793.3.) And it 

provides remedies to any buyer of consumer goods who is damaged by a 
18

manufacturer’s failure to comply with any obligation under the statute or 

under an implied or express warranty.8 (Id., § 1794.)

Plaintiffs’ claims against Nissan under these provisions of the SongBeverly Act (and their related negligent repair claim) are not privity-based 

warranty claims arising under the UCC. Their Song-Beverly claims are not 

founded on any term of the dealership sale agreement, “but instead seek to 

recover based upon [Nissan]’s statutory obligations.” (Yeh, supra, 95 

Cal.App.5th at p. 278, review granted.) The mere fact that Nissan “provided 

an express warranty to [plaintiffs] as a result of the sale . . . does not mean 

[its] obligation to provide a nondefective vehicle under its separate express 

warranty is in any way founded on an obligation imposed by the sales 

contract or is intertwined with those obligations.” (Montemayor, supra, 92 

Cal.App.5th at p. 970, fn. omitted, italics added, review granted.) Equitable 

estoppel does not apply “merely because the lawsuit was predicated on the 

bare fact that a vehicle purchase occurred.” (Murphy v. DirecTV, Inc. (9th 

Cir. 2013) 724 F.3d 1218, 1230 [discussing California law]; see also Goldman,

supra, 173 Cal.App.4th at p. 231 [actual reliance on the terms of the contract 

is required; merely asserting a claim that presumes the contract’s existence is 

not enough]; Mattson Technology, Inc. v. Applied Materials, Inc. (2023) 96 

Cal.App.5th 1149, 1156 [“Nor is it sufficient that . . . the controversy would 

not have occurred but for the existence of the contract, provided the contract 

8 Though not part of this case, the federal Magnuson-Moss Warranty Act 

(15 U.S.C. § 2301 et seq.) contains additional provisions governing warranties 

for consumer products distributed in interstate commerce. “It requires 

disclosures in connection with written warranties, regulates the substantive 

content of warranties, and establishes a federal cause of action for breach of a 

written or an implied warranty (15 U.S.C. § 2310(d)), among other provisions. 

Magnuson-Moss does not substitute federal law for state law of consumer 

products warranties, but instead supplements state law.” (Orichian v. BMW 

of North America, LLC (2014) 226 Cal.App.4th 1322, 1330.)
19

is not the basis for the claims against the non-signatory.”].) Because 

plaintiffs are not relying on any substantive term of the sale agreement to 

establish Nissan’s liability, the inequities that the doctrine of equitable 

estoppel was designed to address are not present.

Like the court in Felisilda, Nissan relies on the parenthetical language 

of the arbitration clause referring to nonsignatory third parties. As written, 

however, this parenthetical appears as part of the identification of the types 

of disputes “between you [the buyers] and us [the dealership]” that are 

subject to arbitration. It includes within its scope any such dispute “between 

you and us” that arises out of the sale “or any resulting transaction or 

relationship (including any such relationship with third parties who do not 

sign this contract).” (Italics added.) Based on its plain meaning, we agree 

with the Ford Motor line of cases “that this language does not show ‘consent 

by the purchaser to arbitrate claims with third party nonsignatories’ ” and 

instead describes “the subject matter of claims the purchasers and dealers 

agreed to arbitrate.” (Yeh, supra, 95 Cal.App.5th at p. 278, review granted, 

quoting Ford Motor, supra, 89 Cal.App.5th at pp. 1334–1335, review granted; 

accord, Montemayor, supra, 92 Cal.App.5th at p. 971, review granted; Kielar,

supra, 94 Cal.App.5th at p. 621, review granted.)

Even if we were to accept Nissan’s interpretation of this parenthetical 

language, however, it would still only be relevant to a third-party beneficiary 

theory, which Nissan has expressly disclaimed on appeal. Nissan does not 

explain how this language logically supports an equitable estoppel theory—

and neither did Felisilda. These are separate and distinct theories for 

enforcement of an arbitration clause by someone who is not a party to the 

contract containing it. The legal requirements for equitable estoppel have 

nothing to do with third-party beneficiaries. (See, e.g., Jarboe v. Hanlees 
20

Auto Group (2020) 53 Cal.App.5th 539, 550–555 [separately analyzing the 

two distinct theories].) In our view, the Felisilda court conflated the two by 

injecting third-party beneficiary principles into its equitable estoppel 

analysis. 

Nissan also relies on the fact that the relief plaintiffs seek in their 

complaint includes rescission of the contract and revocation of acceptance of 

the vehicle. As the Ninth Circuit has observed in rejecting the same 

argument by a vehicle manufacturer, equitable estoppel does not arise solely 

from the remedies the plaintiff seeks in the action. (Kramer, supra, 705 F.3d 

at pp. 1131–1132 [finding no equitable estoppel under California law based 

on plaintiff’s prayer for “revocation of acceptance” of vehicle sale].) Under 

California’s equitable estoppel theory, “[t]he emphasis of the case law is 

unmistakably on the claim itself, not the relief.”9 (Ibid.)

This issue will ultimately be decided by our Supreme Court. There is 

little more we can add to what other appellate courts have already said about 

it. We see no inequity in allowing the plaintiffs to pursue their Song-Beverly 

and tort claims in court. Ultimately, we are persuaded by the more recent 

decisions holding that a vehicle manufacturer who is not a party to the 

9 We also reject Nissan’s remaining arguments on appeal for the reasons 

thoroughly discussed by the court in response to identical arguments made by 

the vehicle manufacturer in Yeh. These include Nissan’s reliance on 

Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, Hauter v. Zogarts

(1975) 14 Cal.3d 104, and A. A. Baxter Corp. v. Colt Industries, Inc. (1970) 10 

Cal.App.3d 144, and its arguments concerning Greenman and Cavanaugh. 

We agree with Yeh’s analysis of these arguments. (Yeh, supra, 95 

Cal.App.5th at pp. 274–278, review granted.) We also agree with

Montemayor that the issue presented here does not turn on whether the 

plaintiffs sued only the manufacturer or both the manufacturer and the 

dealer. This distinction “does not affect the analysis of whether a cause of 

action against the manufacturer may be compelled to arbitration.” 

(Montemayor, supra, 92 Cal.App.5th at p. 972, review granted.)
21

dealership sale contract containing an arbitration clause may not compel 

arbitration under an equitable estoppel theory in these circumstances. 

DISPOSITION

The order denying the motion to compel arbitration is affirmed. 

Respondents are entitled to recover their costs on appeal.

BUCHANAN, J.

I CONCUR:

DO, J.
IRION, Acting P. J., Dissenting.

I disagree with the majority’s resolution of this appeal. In my view, a 

buyer who obtains a manufacturer’s warranty as part of the sale of a new car 

by a dealer and sues the manufacturer and an authorized repair facility for 

breaching the warranty is equitably estopped to refuse to arbitrate with the 

manufacturer and facility when the sale contract between the buyer and the 

dealer contains a provision that would require arbitration had the buyer sued 

the dealer instead. I would therefore reverse the challenged order.

I

I adopt the majority’s summary of the facts and procedure of the case, 

with the following additional information relevant to my analysis of the 

equitable estoppel issue.

The manufacturer’s warranty that came with the 2018 Nissan Altima 

respondents bought is not in the record. The warranty information booklet 

applicable to its 2018 models is available at Nissan North America, Inc.’s 

Web site. The booklet states on page 5 that Nissan North America, Inc. 

“warrants all parts of your 2018 Nissan vehicle supplied by Nissan, except for 

those listed elsewhere under the caption ‘WHAT IS NOT COVERED.’ ” On 

page 6, it states that “[t]he basic coverage period is 36 months or 36,000 

miles, whichever comes first,” and the warranty “covers any repairs needed to 

correct defects in materials or workmanship of all parts and components of 

each new Nissan vehicle supplied by Nissan” subject to specified exceptions.1

Respondents also bought an optional service contract with a term of 6 

years or 100,000 miles when they purchased the 2018 Altima. 

1 2018 Warranty Information Booklet

<https://www.nissanusa.com/content/dam/Nissan/us/manuals-andguides/shared/2018/2018-nissan-warranty-booklet.pdf> [as of Mar. 6, 2024], 

archived at <https://perma.cc/7FPZ-BVQJ>.
2

II

Before I reach the equitable estoppel issue, I must address two 

alternative grounds for affirmance raised by respondents. Neither has merit.

A

Respondents argue appellants forfeited their claims of error by 

omitting unfavorable facts from the opening brief. An appellant’s opening 

brief must contain a fair summary of the significant facts, including those 

unfavorable to appellant. (Cal. Rules of Court, rule 8.204(a)(2)(C); Perry v. 

Kia Motors America, Inc. (2023) 91 Cal.App.5th 1088, 1096.) Appellants’ 

opening brief does so by describing the sale of the Altima to respondents; 

quoting the relevant portion of the arbitration clause they sought to enforce; 

and identifying the nature of respondents’ claims by citing or quoting 

allegations of the complaint concerning the warranties that “accompanied” 

the sale, the defects in the Altima, and the unsuccessful repair attempts. The 

omissions of which respondents complain—failing to reference an allegation 

of the complaint that the warranty obligations “attached to the vehicle 

itself . . . at the time of manufacturing and/or distribution and do not arise 

out of the [p]urchase of the vehicle” or discovery responses in which Nissan 

North America, Inc. admitted “a written limited warranty accompanied the 

[Altima] when it was originally distributed”—did not so misrepresent the 

nature of the case or mislead this court as to constitute a forfeiture. (See 

Perry, at pp. 1095–1096 [misrepresentation of record may forfeit claim of 

error]; Good v. Miller (2013) 214 Cal.App.4th 472, 477 [brief that misled 

appellate court “militate[d] sharply against granting [appellant] relief”].)

B

Respondents argue the arbitration provision of the sale contract was 

not clear enough to waive their constitutional right to proceed in court with 
3

an action for damages under the Song-Beverly Consumer Warranty Act 

(Song-Beverly Act; Civ. Code, § 1790 et seq.). Respondents did not make this 

argument in the superior court, and ordinarily new theories of defense may 

not be raised on appeal. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603; 

Fort Bragg Unified School Dist. v. Colonial American Casualty & Surety Co. 

(2011) 194 Cal.App.4th 891, 907.) In any event, the argument lacks merit. A 

party may waive the right to pursue a statutory claim for damages in court 

by agreeing to arbitrate the claim. (Broughton v. Cigna Healthplans of 

California (1999) 21 Cal.4th 1066, 1084; Prima Donna Development Corp. v. 

Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 36; Lagatree v. Luce, 

Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1117, fn. 7.) 

Respondents did so when, by signing the sale contract, they agreed to resolve 

“BY ARBITRATION AND NOT IN COURT OR ANY JURY TRIAL” any 

claim against Riverside Nissan, including one based on statute, that arises 

out of or relates to the condition of the Altima they bought, the sale contract, 

or a “relationship with third parties who do not sign this contract.” Thus, 

had respondents sued Riverside Nissan for violating the Song-Beverly Act, 

Riverside Nissan could have required respondents to arbitrate. Appellants 

may do the same if they are entitled to enforce the arbitration clause, the issue 

to which I turn next.

III

In resolving the equitable estoppel issue presented by this appeal, I 

first describe the doctrine as it applies generally to enforcement of an 

arbitration agreement. I then analyze the nature of respondents’ claims 

against appellants. And, finally, I explain why, in my view, those claims fall 

within the scope of the equitable estoppel doctrine and permit appellants to 

enforce the arbitration provision of the sale contract against respondents.
4

A

An exception to the general rule that “only a party to an arbitration 

agreement is bound by or may enforce the agreement” (Thomas v. Westlake 

(2012) 204 Cal.App.4th 605, 613, fn. omitted) is the doctrine of equitable 

estoppel, which allows a nonsignatory to a contract to enforce its arbitration 

clause against a signatory who asserts contract-related claims against the 

nonsignatory (Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 

46 Cal.App.5th 337, 353; Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1287 

(Rowe); Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 271 

(Boucher)). The doctrine is based on the maxim that one “who takes the 

benefit must bear the burden.” (Civ. Code, § 3521; see NORCAL Mutual Ins. 

Co. v. Newton (2000) 84 Cal.App.4th 64, 84.) Its purpose is to prevent a 

signatory from asserting rights under a contract as a basis for claims against 

a nonsignatory, while simultaneously avoiding the obligation to arbitrate 

under the contract. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 20; 

Metalclad Corp. v. Ventana Environmental Organizational Partnership 

(2003) 109 Cal.App.4th 1705, 1714.) Hence, a signatory to a contract 

containing an arbitration clause may be estopped to refuse to arbitrate claims 

against a nonsignatory that “rely on and presume the existence of the 

contract” (Boucher, at p. 269), are “dependent upon” the contract (JSM 

Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1239), or “ ‘are 

“intimately founded in and intertwined” with the underlying contract 

obligations’ ” (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. 

(2010) 186 Cal.App.4th 696, 706 (Molecular Analytical Systems)).

“The focus [of the equitable estoppel inquiry] is on the nature of the claims 

asserted by the plaintiff against the nonsignatory defendant.” (Boucher, 

supra, 127 Cal.App.4th at p. 272.) I therefore review the allegations of 
5

respondents’ complaint to determine whether their claims are sufficiently 

related to the sale contract to estop them from refusing to arbitrate with 

appellants. (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 496 

(Felisilda); Molecular Analytical Systems, supra, 186 Cal.App.4th at p. 715.) 

That review requires no resolution of conflicting evidence and is de novo. 

(Duran v. EmployBridge Holding Co. (2023) 92 Cal.App.5th 59, 65; Jarboe v. 

Hanlees Auto Group (2020) 53 Cal.App.5th 539, 547; Molecular Analytical 

Systems, at p. 708.)

B

In their complaint, respondents asserted three counts for violations of 

the Song-Beverly Act against Nissan North America, Inc. The first count 

alleged breach of “[e]xpress warranties [that] accompanied the [p]urchase of 

the [Altima] . . . by which NISSAN NORTH AMERICA, INC. undertook to 

preserve or maintain the utility or performance of [the Altima] or to provide 

compensation if there was a failure in such utility or performance.” (Civ. 

Code, § 1791.2, subd. (a)(1).)2 The second count alleged breach of “implied 

warranties” that “accompanied” the “[p]urchase of the [Altima],” including 

the implied warranty of merchantability. (Civ. Code, § 1792.) The third 

count alleged failure to repair the Altima within a reasonable time so as to 

make it conform to the express warranties that “accompanied” the purchase 

of the vehicle. (Id., § 1793.2, subd. (b).) Respondents also asserted a fourth 

count labeled “Negligent Repair” against both appellants, in which they 

alleged they took the Altima to Nissan of San Bernardino to repair defects 

2 Respondents did not quote the warranty or attach a copy to their 

complaint. As I noted earlier, the warranty was of the usual type whereby 

the manufacturer warranted all vehicle parts and agreed to repair or replace 

any defects for a specified number of years or miles driven. (See dis. opn., 

ante, pt. I.)
6

during the warranty period, Nissan of San Bernardino did not repair the 

defects, and Nissan North America, Inc. failed to exercise reasonable care in 

supervising and reviewing Nissan of San Bernardino’s warranty repair work 

and ratified and approved its negligent conduct. Respondents sought 

rescission of the sale contract, restitution of all monies paid for the Altima, 

damages, a civil penalty, interest, costs, and attorney fees. 

The gist of the complaint is that the Altima respondents bought was 

defective and appellants did not timely repair it to make it comply with the 

warranties that came with the Altima as part of the sale; and, based on the 

breaches of the warranties, respondents want to cancel the sale and get their 

money back. All counts of the complaint “rely upon, make reference to, 

presume the existence of, and are intertwined with the [warranties].” (Rowe, 

supra, 153 Cal.App.4th at p. 1287.) Therefore, under the doctrine of 

equitable estoppel appellants may enforce the arbitration clause against 

respondents if the warranties were part of the sale contract.

C

Appellants contend that under the California Uniform Commercial 

Code (UCC; Cal. U. Com. Code, § 1101 et seq.) and the Song-Beverly Act, the 

express and implied warranties upon which respondents base their claims 

against appellants were part of the contract. I agree.

California’s version of the UCC applies to sales of goods. (Cal. U. Com. 

Code, § 2102.) “A ‘sale’ consists in the passing of title from the seller to the 

buyer for a price.” (Id., § 2106, subd. (1).) “ ‘Goods’ means all things 

(including specially manufactured goods) which are movable at the time of 

identification to the contract for sale other than the money in which the price 

is to be paid, investment securities [citation] and things in action.” (Id., 

§ 2105, subd. (1).) A motor vehicle constitutes goods, the sale of which is 
7

governed by the UCC. (Peckham v. Larsen Chevrolet-Buick-Oldsmobile 

(Idaho 1978) 587 P.2d 816, 818; Sorce v. Naperville Jeep Eagle, Inc. 

(Ill.Ct.App. 1999) 722 N.E.2d 227, 232; Rose v. Epley Motor Sales (N.C. 1975) 

215 S.E.2d 573, 577; Banks v. Shark Auto Sales LLC (Ohio Ct.App. 2022) 

197 N.E.3d 50, 52; First Nat. Bank of El Campo, TX v. Buss (Tex.Ct.App. 

2004) 143 S.W.3d 915, 920.)

“ ‘A present sale,’ ” such as that involved in this case, is “a sale which is 

accomplished by the making of the contract.” (Cal. U. Com. Code, § 2106, 

subd. (1).) The UCC defines “ ‘[c]ontract’ ” as “the total legal obligation that 

results from the parties’ agreement as determined by this code and as 

supplemented by any other applicable laws” (id., § 1201, subd. (b)(12)); and it 

defines “ ‘[a]greement’ ” as “the bargain of the parties in fact, as found in 

their language or inferred from other circumstances, including course of 

performance, course of dealing, or usage of trade” (id., § 1201, subd. (b)(3)). 

“The parties’ ‘total legal obligation’ may be a composite of written terms, oral 

expression and responsibilities implied by law.” (A&M Produce Co. v. FMC 

Corp. (1982) 135 Cal.App.3d 473, 495 (A&M Produce Co.); accord, Reyes v. 

Beneficial State Bank (2022) 76 Cal.App.5th 596, 619 (Reyes).)

The total legal obligation that resulted from the sale of the Altima to 

respondents included the obligations Nissan North America, Inc. assumed in 

the express warranty respondents alleged “accompanied” their purchase of 

the Altima. Obligations that make up a contract under the UCC “include the 

total mix of terms, conditions and warranties which form the bargain of the 

parties,” and “include[ ] the protection afforded by an express limited 

warranty given by [a vehicle m]anufacturer and passed on by [a d]ealer.” 

(Warren & Rowe, The Effect of Warranty Disclaimers on Revocation of

Acceptance Under the Uniform Commercial Code (1986) 37 Ala. L.Rev. 307, 
8

326, 327.) “The existence and comprehensiveness of a warranty undoubtedly 

are significant factors in a consumer’s decision to purchase a particular 

automobile.” (Durfee v. Rod Baxter Imports, Inc. (Minn. 1977) 262 N.W.2d 

349, 357.) “[T]he retailer[’]s sale contract [and] the manufacturer’s warranty, 

are so closely linked both in time of delivery and subject matter, that they 

blended into a single unit at the time of sale. . . . [S]ales are usually made, 

not only upon the make and model of the automobile, but also upon the 

assurance of the manufacturer, through its warranty, that the vehicle will 

conform to the standards of merchantability.” (Volkswagen of America, Inc. 

v. Novak (Miss. 1982) 418 So.2d 801, 804; accord, Fode v. Capital RV Center, 

Inc. (N.D. 1998) 575 N.W.2d 682, 687.) Hence, a vehicle manufacturer’s 

“warranty provided as part of the contract of sale . . . is part of the benefit of 

the bargain between the parties” (Thiedemann v. Mercedes-Benz USA, LLC 

(N.J. 2005) 872 A.2d 783, 794) and “creates a direct contractual obligation to 

the buyer” (Ventura v. Ford Motor Corp. (N.J.App.Div. 1981) 433 A.2d 

801, 812 (Ventura); see Gochey v. Bombardier, Inc. (Vt. 1990) 572 A.2d 

921, 924 [“when a manufacturer expressly warrants its goods, it, in effect, 

creates a direct contract with the ultimate buyer”]).

Consistent with these principles, the Supreme Court of California 

treated a vehicle manufacturer’s warranty as part of a sale contract in 

Seely v. White Motor Co. (1965) 63 Cal.2d 9, 12 (Seely), where the buyer 

contracted with Southern Truck Sales to buy a truck manufactured by White 

Motor Company. The manufacturer “included the following promise in the 

printed form of the purchase order signed by [the buyer]: ‘The White Motor 

Company hereby warrants each new motor vehicle sold by it to be free from 

defects in material and workmanship under normal use and service, its 

obligation under the warranty being limited to making good at its factory any 
9

part or parts thereof. . . . ’ ” (Id. at p. 13.) Even though the manufacturer, 

not the seller, made the promise, the Supreme Court held the “promise meets 

the statutory requirement for an express warranty: ‘Any affirmation of fact 

or any promise by the seller relating to the goods is an express warranty if 

the natural tendency of such affirmation or promise is to induce the buyer to 

purchase the goods, and if the buyer purchases the goods relying thereon.’ 

(Civ. Code, [former] § 1732; cf. Com. Code, §§ 2313,[3] 2314.)” (Seely, at p. 13; 

see Hauter v. Zogarts (1975) 14 Cal.3d 104, 108, fn. 1, 109, 115–117 (Hauter) 

[manufacturer liable for breach of express warranty under Cal. U. Com. 

Code, § 2313 based on statement about product safety that accompanied 

product sold by different entity].) The Supreme Court further held the buyer 

could recover from the manufacturer for breach of express warranty lost 

profits and the amount paid on the purchase price, contract-based remedies 

ordinarily available only against the seller. (Seely, at p. 14, citing Civ. Code, 

former § 1789 & Cal. U. Com. Code, § 2714.)4

Subsequent Court of Appeal decisions have cited Seely in support of 

holdings that a vehicle manufacturer’s warranty to repair or replace defective 

parts for a certain number of years or miles, given to a buyer of a new vehicle 

from a dealership, constitutes an express warranty within the meaning of the 

UCC. (See Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 

1322, 1326, 1332–1333 (Orichian); Krieger v. Nick Alexander Imports, Inc. 

3 “Any affirmation of fact or promise made by the seller to the buyer 

which relates to the goods and becomes part of the basis of the bargain 

creates an express warranty that the goods shall conform to the affirmation 

or promise.” (Cal. U. Com. Code, § 2313, subd. (1)(a).)

4 The Civil Code sections the Supreme Court cited were part of the 

Uniform Sales Act, which was repealed and replaced by the UCC provisions 

on sales. (Seely, supra, 63 Cal.2d at p. 13, fn. 1; see Stats. 1963, ch. 819, § 2.)
10

(1991) 234 Cal.App.3d 205, 217; see also Dagher v. Ford Motor Co. (2015) 

238 Cal.App.4th 905, 910–911, 928 (Dagher) [noting UCC gave buyer of 

vehicle from private seller express warranty claim against manufacturer].) 

An express warranty, of course, is a term of a sale contract. (Jones v. 

ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1200; Daugherty v. 

American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 830 

(Daugherty); A. A. Baxter Corp. v. Colt Industries, Inc. (1970) 10 Cal.App.3d 

144, 153; see 4 Witkin, Summary of Cal. Law (11th ed. 2017) Sales § 51, p. 62 

[“A warranty is a contractual term concerning some aspect of the sale”].)

The total legal obligation that made up the sale contract also included 

the implied warranty of merchantability, which respondents alleged in their 

complaint “accompanied” the sale of the Altima. Such a warranty “arises by 

operation of law” (Hauter, supra, 14 Cal.3d at p. 117) and guarantees the 

goods sold are “merchantable,” i.e., “fit for the ordinary purposes for which 

such goods are used.” (Cal. U. Com. Code, § 2314, subds. (1), (2)(c); see Civ. 

Code, § 1792 [unless properly disclaimed “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”].) 

Since obligations implied by law are part of the total legal obligation that 

results from a sale, the implied warranty of merchantability is part of the 

sale contract. (Cal. U. Com. Code, § 1201, subd. (b)(12); A&M Produce Co., 

supra, 135 Cal.App.3d at p. 495.)

The sale contract itself acknowledges the existence of these warranties 

by negative implication. The contract addresses the subject of warranties, 

under the heading “WARRANTIES SELLER DISCLAIMS,” as follows: “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 
11

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 any warranties covering the vehicle that the vehicle 

manufacturer may provide.” (Boldface omitted; italics added.) “Because a 

disclaimer . . . is inconsistent with an express warranty, words of 

disclaimer . . . give way to words of warranty unless some clear agreement 

between the parties dictates the contrary relationship.” (Hauter, supra, 

14 Cal.3d at p. 119; see Weinstat v. Dentsply Internat., Inc. (2010) 

180 Cal.App.4th 1213, 1229 (Weinstat) [“Any affirmation, once made, is part 

of the agreement unless there is ‘clear affirmative proof’ that the affirmation 

has been taken out of the agreement.”].) A manufacturer that gives an 

express warranty with respect to consumer goods may not disclaim the 

implied warranty of merchantability. (Civ. Code, § 1793.) The warranties 

thus prevail over the disclaimer in this case because respondents received an 

express warranty from Nissan North America, Inc. and bought a service 

contract as part of their purchase of the Altima, and therefore the condition 

for disclaimer of warranties italicized above was not satisfied. (See Dones v. 

Life Ins. Co. of North America (2020) 55 Cal.App.5th 665, 677 [conditional 

contractual right does not accrue unless condition occurs].) Rather than 

disclaiming all warranties, as the majority asserts (maj. opn., ante, p. 11), 

erroneously in my view, the sale contract here acknowledged the express and 

implied warranties and effectively incorporated them by reference.

Respondents’ claims against appellants assume the warranties arose 

out of the sale contract. The Song-Beverly Act gives a “buyer” a cause of 

action for breach of an express or implied warranty. (Civ. Code, § 1794, 

subd. (a).) As pertinent to this case, a buyer is a party who purchases or 

contracts to purchase “consumer goods,” i.e., a new product to be used 
12

“primarily for personal, family, or household purposes.” (Id., § 1791, 

subds. (a), (b); Cal. U. Com. Code, § 2103, subd. (1)(a); Black’s Law Dict. 

(11th ed. 2019) p. 249.) The Act defines “ ‘[e]xpress warranty’ ” as “[a] written 

statement arising out of a sale to the consumer of a consumer good pursuant 

to which the manufacturer . . . undertakes to preserve or maintain the utility 

or performance of the consumer good or provide compensation if there is a 

failure in utility or performance.” (Civ. Code, § 1791.2, subd. (a)(1), italics 

added.) Thus, “the Legislature apparently conceived of an express warranty 

as being part of the purchase of a consumer product.” (Gavaldon v. 

DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1258 (Gavaldon), italics 

added.) The Act also prescribes that “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, italics added.) “ ‘Sale is a word of precise legal import. It 

means at all times a contract between parties to give and to pass rights of 

property for money which the buyer pays or promises to pay the seller for the 

thing bought and sold.’ ” (Van Allen v. Francis (1899) 123 Cal. 474, 479 

(Van Allen), italics added.) This common law definition “is substantially the 

same as used in Commercial Code section 2106.” (Rich v. State Bd. of 

Optometry (1965) 235 Cal.App.2d 591, 606 (Rich).) Since only a warranty 

that arises out of a sale can support a Song-Beverly Act claim and since a 

sale is a contract, respondents’ claims against appellants necessarily rely on 

the sale contract.

The claims rely on the sale contract in other ways as well. Respondents 

will need the contract to establish their Altima was new and purchased from 

a retail seller, so that they may assert rights and obtain remedies under the 

Song-Beverly Act. (See Civ. Code, §§ 1791, subds. (a), (b) & (l), 1794, 
13

subd. (a); Dagher, supra, 238 Cal.App.4th at p. 917.) They will need the 

contract to establish the date the warranties took effect, so that they can 

prove the warranties were in effect when they sought the repairs that 

appellants allegedly negligently failed to perform. (See Civ. Code, §§ 1791.1, 

subd. (c) [implied warranty of merchantability expires no later than one year 

after sale of new consumer goods to buyer], 1793.2 [manufacturer must make 

repairs during express warranty period]; Daugherty, supra, 144 Cal.App.4th 

at p. 830 [“The general rule is that an express warranty ‘does not cover 

repairs made after the applicable time or mileage periods have elapsed.’ ”].) 

On their breach of warranty counts, respondents prayed for damages, which 

“are dependent upon their affirmance of the existence of a contract to 

purchase.” (Paularena v. Superior Court (1965) 231 Cal.App.2d 906, 915.) 

Respondents alternatively prayed for rescission of the sale contract and 

restitution, and thus will need the contract to establish its existence and the 

amount they paid on it. (See Civ. Code, §§ 1791.1, subd. (d), 1793.2, 

subd. (d)(2), 1794, subd. (b)(1) [buyer may cancel sale contract and recover 

amount paid when manufacturer fails to repair vehicle during warranty 

period]; Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 621 [on 

breach of implied warranty of merchantability, buyer may cancel contract 

and recover amounts paid to purchase goods].)5

5 I disagree with the majority’s suggestion that the remedies respondents 

seek are irrelevant to the equitable estoppel analysis because, the majority 

says, “ ‘[t]he emphasis of the case law is unmistakably on the claim itself, not 

the relief.’ ” (Maj. opn., ante, p. 20, quoting Kramer v. Toyota Motor Corp. 

(9th Cir. 2013) 705 F.3d 1122, 1132.) California courts have routinely 

considered the remedies plaintiffs sought against nonsignatories to a contract 

containing an arbitration clause in deciding whether the claims were 

sufficiently related to the contract to support application of equitable 

estoppel. (See, e.g., Molecular Analytical Systems, supra, 186 Cal.App.4th at 
14

In sum, “the sale[ ] contract was the source of the warranties at the 

heart of this case” (Felisilda, supra, 53 Cal.App.5th at p. 496), and all of 

respondents’ claims against appellants “are ‘intimately founded in and 

intertwined’ with the underlying contract obligations” (Boucher, supra, 

127 Cal.App.4th at p. 271). “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.” (Id. at p. 272.) “ ‘Where the equitable estoppel doctrine applies, 

the nonsignatory has a right to enforce the arbitration agreement.’ ” 

(Felisilda, at p. 496.) In my view, therefore, appellants may enforce the 

arbitration clause of the sale contract against respondents.

IV

In reaching the opposite conclusion, the majority follows Ford Motor 

Warranty Cases (2023) 89 Cal.App.5th 1324, review granted July 19, 2023, 

S279969 (Ford Motor), and other recent Court of Appeal decisions that hold 

equitable estoppel does not apply in circumstances substantially similar to 

those of this case.6 I find unpersuasive the reasoning of those cases and that 

of the majority in this case.

A

The primary reason the Ford Motor court gave for rejecting application 

of equitable estoppel was that “California law does not treat manufacturer 

p. 717; Rowe, supra, 153 Cal.App.4th at p. 1287; Turtle Ridge Media Group, 

Inc. v. Pacific Bell Directory (2006) 140 Cal.App.4th 828, 834–835.)

6 The other cases are Montemayor v. Ford Motor Co. (2023) 

92 Cal.App.5th 958, review granted September 20, 2023, S281237 

(Montemayor); Kielar v. Superior Court (2023) 94 Cal.App.5th 614, review 

granted October 25, 2023, S281937 (Kielar); and Yeh v. Superior Court (2023) 

95 Cal.App.5th 264, review granted November 15, 2023, S282228 (Yeh).
15

warranties imposed outside the four corners of a retail sale contract as part of 

the sale contract.” (Ford Motor, supra, 89 Cal.App.5th at p. 1335, review 

granted.) The cases following Ford Motor agreed with that reason (Yeh, 

supra, 95 Cal.App.5th at p. 274, review granted; Kielar, supra, 

94 Cal.App.5th at p. 621, review granted; Montemayor, supra, 92 Cal.App.5th

at pp. 968, 972, review granted), and so does the majority in this case (maj. 

opn., ante, pp. 13–14). I disagree.

Under the UCC, the sale contract is “the total legal obligation that 

results from the parties’ agreement” (Cal. U. Com. Code, § 1201, 

subd. (b)(12)) and may include warranties not stated in the written 

agreement (A&M Produce, supra, 135 Cal.App.3d at p. 495). An express 

warranty included in a sale as a separate document is part of the sale 

contract. (Weinstat, supra, 180 Cal.App.4th at p. 1230 [UCC “contemplates 

that affirmations, promises and descriptions about the goods contained in 

product manuals and other materials that are given to the buyer at the time 

of delivery can become part of the basis of the bargain, and can be 

‘fairly . . . regarded as part of the contract’ ”]; Murphy v. Mallard Coach Co. 

(N.Y.App.Div. 1992) 582 N.Y.S.2d 528, 531 [“the fact that [the manufacturer’s 

warranty] was given to plaintiffs at the time they took delivery of the motor 

home renders it sufficiently proximate in time so as to fairly be said to be 

part of the basis of the bargain”].) So is the implied warranty of 

merchantability (Cal. U. Com. Code, § 2314, subd. (1); Civ. Code, § 1792), 

which “ ‘[i]nto every mercantile contract of sale the law inserts’ ” (Hauter, 

supra, 14 Cal.3d at p. 117). Further, in enacting the Song-Beverly Act, which 

supplements the UCC (Civ. Code, § 1790.3; Dagher, supra, 238 Cal.App.4th 

at p. 928), “the Legislature apparently conceived of an express warranty as 

being part of the purchase of a consumer product” (Gavaldon, supra, 
16

32 Cal.4th at p. 1258, italics added). Hence, California law does treat a 

manufacturer’s warranty that is not stated in the sale contract as part of the 

contract, where, as here, the warranty is given or arises as part of the sale.

The two decisions Ford Motor cited for its conclusion that the 

manufacturer’s warranty was not part of the sale contract in that case—

Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 and Corporation 

of Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. 

Cavanaugh (1963) 217 Cal.App.2d 492 (Ford Motor, supra, 89 Cal.App.5th at 

p. 1336, review granted)—do not support that conclusion. Those decisions 

concerned claims by plaintiffs for breach of an express warranty that a 

product manufacturer had given to, respectively, a retailer or a contractor 

who installed the product. (Greenman, at pp. 59–60 & fn. 1; Cavanaugh, at 

pp. 496, 512–513.) Each court held the plaintiff was not required to notify 

the manufacturer of the breach under the now-repealed Uniform Sales Act 

(Civ. Code, former § 1721 et seq., repealed by Stats. 1963, ch. 819, § 2), 

because the warranty obligations were not part of a contract of sale between 

the manufacturer and the plaintiff that was subject to the Uniform Sales Act 

and instead were imposed on the manufacturer as a matter of law. 

(Greenman, at p. 61; Cavanaugh, at pp. 514–515.) Unlike this case, in which 

Nissan North America, Inc.’s warranty accompanied the sale of the Altima to 

respondents, the warranty did not accompany a sale of the product to the 

plaintiff in either Greenman or Cavanaugh. Neither case considered the 

status of such an accompanying warranty in a transaction governed by the 

UCC, which did not take effect in California until January 1, 1965. (Cal. U. 

Com. Code, § 13101.) The UCC expands liability beyond that of the former 

Uniform Sales Act (Hauter, supra, 14 Cal.3d at p. 115, fn. 10) and defines a 

sale contract more broadly than did the Uniform Sales Act (compare Cal. U.
17

Com. Code, § 1201, subd. (b)(12) with Civ. Code, former § 1721, subd. (1)). As 

I explained above, under the UCC, as supplemented by the Song-Beverly Act, 

a manufacturer’s express or implied warranty that accompanies a vehicle at 

the time of sale is part of the “the total legal obligation” that constitutes the 

sale contract. (Cal. U. Com. Code, § 1201, subd. (b)(12); see dis. opn., ante, 

pp. 7–10.)

B

I disagree with the majority’s assertions that: (1) the warranty 

provisions of the UCC “are limited to warranties given directly by the seller 

to the buyer”; (2) “absent direct dealings between the manufacturer and 

purchaser, manufacturer warranties (express or implied) generally fall 

outside the scope of the UCC and are governed by other provisions of law”;

and (3) the UCC definition of contract is limited “to the legal obligations of 

the contracting parties, not strangers to the contract.” (Maj. opn., ante, 

pp. 12, 14–15.) The UCC definition of contract does not exclude legal 

obligations owed by or to third parties (Cal. U. Com. Code, § 1201, 

subd. (b)(12)), and we may not impose such an exclusion (Crespin v. Kizer 

(1990) 226 Cal.App.3d 498, 511 [“courts may not insert qualifying provisions 

not included in the plain language of the statute”]). Any such exclusion 

would contradict the official UCC comment quoted by the majority (maj. opn., 

ante, p. 12) that “the warranty sections of this Article are not designed in any 

way to disturb those lines of case law growth which have recognized that 

warranties need not be confined either to sales contracts or to the direct 

parties to such a contract” (Cal. U. Com. Code com., 23A pt. 1 West’s Ann. 

Cal. U. Com. Code (2002 ed.) foll. § 2313, com. 2, p. 296, italics added). One 

such line of case law is Seely, supra, 63 Cal.2d 9, and the Court of Appeal 

cases that followed Seely in holding a vehicle manufacturer’s written 
18

warranty to repair or replace defective parts, given to a buyer by a seller at 

the time of sale, meets the UCC definition of express warranty whose breach

may give the buyer UCC remedies against the manufacturer. (See dis. opn., 

ante, pp. 8–10.) The lack of privity between the manufacturer and the buyer 

does not prevent such a warranty from being part of the bargain between the 

buyer and the seller or creating obligations to the buyer that are part of the 

sale contract. (Cal. U. Com. Code, § 1201, subd. (b)(12); Seely, at pp. 13–14; 

Ventura, supra, 433 A.2d at pp. 811–812.)

C

I am not persuaded that the UCC definition of contract is inapplicable, 

or that respondents’ claims are not based on the sale contract, simply because 

they have asserted rights and sought remedies under the Song-Beverly Act. 

(See Yeh, supra, 95 Cal.App.5th at p. 278, review granted; Montemayor, 

supra, 92 Cal.App.5th at p. 970, review granted; Ford Motor, supra, 89 

Cal.App.5th at p. 1335, review granted; maj. opn., ante, pp. 16–18.) The 

Song-Beverly Act supplements rather than supersedes the UCC, and its 

remedies are cumulative. (Civ. Code, §§ 1790.3, 1790.4; Dagher, supra, 

238 Cal.App.4th at p. 928.) Claims for breach of express or implied warranty 

are based on contract. (Reyes, supra, 76 Cal.App.5th at p. 619; A&M Produce 

Co., supra, 135 Cal.App.3d at p. 495.) “That [respondents] styled their causes 

of action as violations of [the Song-Beverly Act] does not alter the fact that 

the primary right at issue was contractual in nature. [Citation.] Similarly, 

the fact that the California Legislature has seen fit to provide consumers 

with additional remedies for certain contractual claims does not alter the 

nature of the action.” (Reyes, at pp. 619–620.) A party cannot avoid 

arbitration of claims arising out of a contract containing an arbitration clause 
19

“by framing his claims as merely statutory.” (Garcia v. Pexco, LLC (2017) 

11 Cal.App.5th 782, 787.)

D

I also disagree with those courts that have refused to apply equitable 

estoppel to require a buyer to arbitrate Song-Beverly Act claims against a 

manufacturer because, in the view of those courts, the claims were based on a 

sale and not on a sale contract. In the decision on which the superior court 

relied to deny appellants’ motion to compel arbitration, the Ninth Circuit 

stated: “It is the retail sale—the fact that Ngo bought a BMW—not the 

purchase agreement, that gives a plaintiff standing to sue under the 

Song-Beverly Act.” (Ngo v. BMW of North America, LLC (9th Cir. 2022) 

23 F.4th 942, 950.) Similarly, based on the Act’s definition of an express 

warranty as “a written statement arising out of a sale” (Civ. Code, § 1791.2, 

subd. (a)(1)), the Court of Appeal stated “an express warranty arises out of a 

sale rather than the underlying contracts” (Yeh, supra, 95 Cal.App.5th at 

p. 277, review granted). As I explained earlier, however (see dis. opn., ante, 

pp. 12–13), “[a] sale is a contract.” (Van Allen, supra, 123 Cal. at p. 479, 

italics added; accord, Paykar Construction, Inc. v. Bedrosian (1999) 

71 Cal.App.4th 803, 807; Rich, supra, 235 Cal.App.2d at p. 606; Salada Beach 

etc. Dist. v. Anderson (1942) 50 Cal.App.2d 306, 309; Black’s Law Dict. 

(11th ed. 2019) p. 1603; Webster’s 3d New Internat. Dict. (2002) p. 2003.) I 

thus reject as legally unsound the distinction the Ngo and Yeh courts 

purported to draw between a sale and a sale contract.

E

Finally, I reject a related contention, unaddressed by the majority, by 

which respondents attempt to put even more distance between the sale 
20

contract and the warranties. They rely on the following allegation of their 

complaint:

“The warranty obligations of NISSAN NORTH AMERICA, 

INC. are attached to the vehicle by Defendant NISSAN 

NORTH AMERICA, INC. at the time of manufacturing 

and/or distribution and do not arise out of the [p]urchase of 

the vehicle. The benefits of the warranty to cover the costs 

of repairs will automatically inure to any registered owner 

of the vehicle regardless of whether the vehicle is 

purchased, leased, or provided as a gift to the owner and 

irrespective of any terms in a [p]urchase contract.” (Italics 

added.)

Respondents argue that because under Felisilda, supra, 53 Cal.App.5th at 

page 496, a court determines from the allegations of the complaint whether 

claims are founded in or intimately connected with the sale contract, this 

court must credit the quoted allegation and conclude their claims do not arise 

out of the contract. I disagree.

The quoted allegation is a mere conclusion of law, which I need not, and 

do not, accept in deciding whether respondents’ claims arise out of the sale 

contract, especially since it flatly contradicts their allegations the express 

and implied warranties “accompanied” their purchase of the Altima. (See 

McBride v. Smith (2018) 18 Cal.App.5th 1160, 1182 [court does not accept as 

true legal conclusion in pleading]; Williamson v. Pacific Greyhound Lines 

(1944) 67 Cal.App.2d 250, 253 [court ascertains nature of action by 

considering pleading as a whole].) Moreover, the allegation is, in my view, 

false. Although the warranties pertain to the Altima, the obligations to 

repair or replace defective parts did not arise until respondents bought it. A 

“sale is an essential element to impose liability under warranties.” (Shepard 

v. Alexian Brothers Hosp. (1973) 33 Cal.App.3d 606, 614; see Fogo v. Cutter 

Laboratories, Inc. (1977) 68 Cal.App.3d 744, 759 [“a sale is ordinarily an 
21

essential element of any warranty, express or implied”].) Respondents may 

enforce the warranty obligations only because they signed a sale contract to 

buy the Altima and received the warranties as part of the sale. (See 

Civ. Code, § 1794, subd. (a) [“buyer” may file action for damages and 

equitable relief against manufacturer that fails to comply with express 

warranty]; Orichian, supra, 226 Cal.App.4th at p. 1333 [UCC gives buyer 

remedies for breach of express warranty “to repair defects given in connection 

with the sale of goods”].) Hence, the warranty obligations at issue in this 

case arose out of the sale contract. (See Pacific Indem. Co. v. Truck Ins. Exch.

(1969) 270 Cal.App.2d 700, 704 [“ ‘arising out of’ is equated with origination, 

growth or flow from the event”]; Black’s Law Dict. (11th ed. 2019) p. 133 

[“arise” means “[t]o originate; to stem (from)” or “[t]o result (from)”].)

I disregard respondents’ contrary allegation for another reason. The 

allegation, like respondents’ decision not to sue the dealership with which 

they signed the contract to buy the Altima, seems designed to avoid their 

contractual obligation to arbitrate. (Cf. Grigson v. Creative Artists Agency 

(5th Cir. 2000) 210 F.3d 524, 530 [plaintiff’s commencement of action against 

nonsignatories after voluntary dismissal of action against signatory that 

moved to compel arbitration was “a quite obvious, if not blatant, attempt to 

bypass the agreement’s arbitration clause”].) “No person can be permitted to 

adopt that part of an entire transaction which is beneficial to him/her, and 

then reject its burdens.” (Halperin v. Raville (1986) 176 Cal.App.3d 

765, 772.) “To allow respondent[s] to assert rights and benefits under the 

contract and then later repudiate it merely to avoid arbitration would be 

entirely inequitable.” (Avina v. Cigna Healthplans of California (1989) 

211 Cal.App.3d 1, 3.) The purpose of the doctrine of equitable estoppel is “to 

prevent a party from using the terms or obligations of an agreement as the 
22

basis for his claims against a nonsignatory, while at the same time refusing 

to arbitrate with the nonsignatory under another clause of that same 

agreement.” (Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 221.) I 

thus disagree with the majority that “the inequities that the doctrine of

equitable estoppel was designed to address are not present.” (Maj. opn., ante, 

p. 19.)

V

In summary, I would treat the warranties at issue in this case as what 

they are: obligations arising out of the contract by which respondents bought 

the allegedly defective Altima. “An express warranty for a new automobile is 

not provided gratuitously by the manufacturer or seller. The cost of the 

warranty is included in the cost of the product. The consumer has purchased 

the warranty along with the car. It is ‘part of the benefit of the bargain.’ ” 

(Ford Motor Credit Company, LLC v. Mendola (N.J.App.Div. 2012) 48 A.3d 

366, 376.) Because respondents assert the benefit of the bargain by seeking 

to hold appellants liable for breaching the warranty obligations, I would hold 

them to the burden of the same bargain by equitably estopping them from 

refusing to arbitrate their claims under the arbitration provision of the sale 

contract. (Civ. Code, § 3521 [“He who takes the benefit must bear the 

burden.”].) I therefore dissent from the majority’s decision to affirm the order 

denying the motion to compel arbitration and to stay the action. I would 

reverse the order and remand the matter to the superior court with directions 

to grant the motion.

IRION, Acting P. J.