LEONARDO BALTER, AN INDIVIDUAL v. TESLA MOTORS INC., A CORPORATION et al Document 5

Superior Court of California, County of San Francisco
Case No. CGC 22 599664
Filed June 10, 2022

NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY PROCEEDINGS PENDING OUTCOME OF ARBITRATION (TRANSACTION ID # 100166637) FILED BY DEFENDANT TESLA, INC. HEARING SET FOR JUL-14-2022 AT 09:30 AM IN DEPT 302

BackBack to LEONARDO BALTER, AN INDIVIDUAL v. TESLA MOTORS INC., A CORPORATION et al

Tags No tags have been applied so far. Sign in to add some.

  Formatted Text Tab Overlap Raw Text Right End
Page 1
Bradley M. Tanner (SBN: 273057)
TESLA, INC.
901 Page Avenue
Fremont, CA Telephone: (415) 340-Email: brtanner@tesla.com
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
Attorney for Defendant TESLA, INC.
06/10/
Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

LEONARDO BALTER, an individual,
Plaintiff,

v.
TESLA MOTORS INC., a corporation, and
DOES 1 to 10, inclusive,
Defendants.
CASE NO. CGC-22-DEFENDANT TESLA, INC.’S NOTICE OF
PETITION AND PETITION TO COMPEL
ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF
ARBITRATION; MEMORANDUM OF
POINTS AND AUTHORITIES;
DECLARATIONS OF RAYMOND KIM
AND BRADLEY M. TANNER
[Filed concurrently herewith [Proposed]
Order]

DATE: July 14, TIME: 9:30 a.m.
DEPT:
Complaint Filed: May 17,
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 2
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on July 14, 2022, at 9:30 a.m. or as soon thereafter as the

matter can be heard in Department 302 of the San Francisco County Superior Court, which is

located at 400 McAllister Street, San Francisco, California 94102, there will be a hearing on the

Petition of Defendant Tesla Inc.’s (hereinafter “Tesla” or “Moving Party”) to compel arbitration

of this controversy with the American Arbitration Association (“AAA”) and to stay the above-

captioned action.

This Petition (“Petition”) is made pursuant to the Federal Arbitration Act (“FAA”),
U.S.C. § 1 et seq., the California Arbitration Act (“CAA”), California Code of Civil Procedure

section 1280 et seq., federal and California decisional authorities, and the arbitration notice and

provisions set forth in the Motor Vehicle Order Agreement (“MVOA”) and Lease Agreement

(“Lease”), which were both agreed to and signed by Plaintiff Leonardo Balter (“Plaintiff”). Said

authority requires Plaintiff to submit to arbitration of a controversy upon determination that an

agreement to arbitrate the controversy exists. Plaintiff executed valid agreements to submit this

dispute to binding arbitration. Both agreements further require the parties to arbitrate with AAA.

The Court must order this entire action to binding arbitration in accordance therewith and stay

this matter pursuant to 9 U.S.C. § 3 and Code of Civil Procedure section 1281.4 through

arbitration, and to order the arbitration be conducted by AAA as required by the controlling

agreement. This motion is also filed in lieu of the Moving Party’s answer or responsive pleading

pursuant to California Code of Civil Procedure section 1281.7.

On the aforementioned date and at the aforementioned time, Moving Party will also move,

and does hereby move the Court, pursuant to California Code of Civil Procedure section 1281.4,

to stay the above-captioned action until an arbitration is had in accordance with the order to

arbitrate or until such earlier time as the Court specifies.

///
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 3
This Petition is based upon this notice of Petition, the accompanying memorandum of

points and authorities, the attached arbitration agreement and declarations of Bradley Mark

Tanner and Raymond Kim, and attached exhibits, the complete files and records in this action,

and such other argument and evidence as may be presented at or before the hearing of this matter.

Dated: June 10,
TESLA, INC.

By:______________________________
BRADLEY M. TANNER
Attorney for Defendant Tesla, Inc.
-2-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 4 MEMORANDUM OF POINTS AND AUTHORITIES

I.
INTRODUCTION

Plaintiff Leonardo Balter (“Plaintiff”) entered into a written contract with Tesla, Inc.

(“Tesla”) for the lease of a new 2020 Tesla Model Y, VIN 5YJYGDEF5LF000097 (the

“Vehicle”). The transaction was governed by a Lease Agreement (“Lease”) containing the terms

and conditions of the sale. The Lease included an arbitration clause which requires binding

arbitration of this entire action with the American Arbitration Association (“AAA”). However,

Plaintiff has ignored his contractual obligations, and instead of initiating arbitration with AAA,

and filed the present lawsuit. Accordingly, because the arbitration agreement is valid and covers

the parties and controversy set forth in the lawsuit, the Moving Party requests this Court order the

action to arbitration with AAA and stay the proceedings pending the completion of such

arbitration.

II.
STATEMENT OF FACTS

On April 8, 2021, Plaintiff placed an order for his Vehicle, agreed to the terms of the

Motor Vehicle Order Agreement (“MVOA”) (See, Declaration of Raymond Kim (“Kim Decl.”),

at ¶ 2, Exh. “A”.) On or about April 10, 2021, Plaintiff completed the purchase of the Vehicle,

and entered into a written contract with Tesla for the lease of the Vehicle pursuant to the

aforementioned Lease. (Kim Decl., ¶ 3, Exh. B, Lease Agreement (“Lease”), and ¶ 6.)

The Lease provides:
Agreement to Arbitrate: Please carefully read this provision,
which applies to any dispute between you and Tesla, Inc. and its
affiliates, (together “Tesla”).
If you have a concern or dispute, please send a written notice
describing it and your desired resolution to resolutions@tesla.com.
If not resolved within 60 days, you agree that any dispute arising
out of or relating to any aspect of the relationship between you and
Tesla will not be decided by a judge or jury but instead by a single
arbitrator in an arbitration administered by the American
Arbitration Association (AAA) under its Consumer Arbitration
Rules. This includes claims arising before this Agreement, such as
claims related to statements about our products.
-1-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 5
We will pay all AAA fees for any arbitration, which will be held in
the city or county of your residence. To learn more about the Rules
and how to begin an arbitration, you may call any AAA office or go
to www.adr.org.

The arbitrator may only resolve disputes between you and Tesla,
and may not consolidate claims without the consent of all parties.
The arbitrator cannot hear class or representative claims or requests
for relief on behalf of others purchasing or leasing Tesla vehicles.
In other words, you and Tesla may bring claims against the other
only in your or its individual capacity and not as a plaintiff or class
member in any class or representative action. If a court or arbitrator
decides that any part of this agreement to arbitrate cannot be
enforced as to a particular claim for relief or remedy (such as
injunctive or declaratory relief), then that claim or remedy (and
only that claim or remedy) shall be severed and must be brought in
court and any other claims must be arbitrated.

If you prefer, you may instead take an individual dispute to small
claims court.

You may opt out of arbitration within 30 days after signing this
Agreement by sending a letter to: Tesla, Inc.; P.O. Box 15430;
Fremont, CA 94539-7970, stating your name, Vehicle Identification
Number, and intent to opt out of the arbitration provision. If you do
not opt out, this agreement to arbitrate overrides any different
arbitration agreement between us, including any arbitration
agreement in a lease or finance contract. (See id. at p. 2.)
After an opportunity to review the Lease, Plaintiff signed in the indicated space, indicating

his agreement to arbitrate pursuant to the applicable provision set forth on the Lease.

The Lease forms the basis of Plaintiff’s allegations against Moving Party. (See id.)

Despite the terms and specific arbitration provision within the Lease, Plaintiff filed the operative

The MVOA also contains the same arbitration provision that states in pertinent terms:
Agreement to Arbitrate. Please carefully read this provision, which applies to any dispute between you
and Tesla, Inc. and its affiliates, (together “Tesla”).
If you have a concern or dispute, please send a written notice describing it and your desired resolution to
resolutions@tesla.com.
If not resolved within 60 days, you agree that any dispute arising out of or relatng to any aspect of the
relationship between you and Tesla will not be decided by a judge or jury but instead by a single arbitrator
in an arbitration administered by the American Arbitration Association (AAA) under its Consumer
Arbitration Rules. This includes claims arising before this Agreement, such as claims related to statements
about our products.

-2-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 6
Complaint for Damages on May 17, 2022 (the “Complaint”). (See, See, Declaration of Bradley

M. Tanner (“Tanner Decl.”), ¶ 2, Exh. “C”, Complaint (“Compl.”) The Complaint contains a

single cause of action, for Violation of the Song Beverly Consumer Warranty Act. (See id.) The

above claims is subject to binding arbitration. The Moving Party denies Plaintiff’s allegations,

and demands the controversy be resolved through binding Arbitration, through the AAA, as set

forth in the controlling Lease. Tesla has not received any opt out notice from Plaintiff in response

to opt-out provisions set forth in the MVOA and Lease. (Kim Decl., ¶ 4.)

On May 28 and June 8, 2022, Tesla sent emails to Plaintiff’s counsel to discuss the matter

and requesting Plaintiff agree to arbitrate the matter with AAA under the lease terms. (Tanner

Decl., ¶ 3, Exhs. “D,” “E”, and “F”.) Plaintiff’s counsel responded they refuse to stipulate to

arbitration, but when pressed for a good faith legal basis based on the MVOA and Lease, Plaintiff

did not provide any further response. (Tanner Decl., ¶ 4.) By refusing to arbitrate the instant

action with AAA, Plaintiff has not only ignored, but also breached, the arbitration provisions

contained in the MVOA and Lease.

III.
LEGAL ARGUMENT

Plaintiff’s claims must be arbitrated pursuant to the parties’ express agreement. As

discussed below, both federal law and California law favor the enforcement of valid arbitration

agreements. (See, Armendariz v. Foundation Health Psychcare Svcs., Inc. (2000) 24 Cal.4th 83,

97.) The United States Supreme Court has often reaffirmed the long-standing “liberal federal

policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of

contract” stating, “in line with these principles, courts must place arbitration agreements on equal

footing with other contracts…[and] enforce them according to their terms.” (See e.g., AT&T

Mobility, LLC v. Concepcion (2011) 563 U.S. 321, 131 S.Ct. 1740, 1745-46; DirecTV, Inc. v.

Imburgia, et al. (2015) 136 S.Ct. 463.) The California Supreme Court has additionally favored the

enforcement of arbitration clauses through its adoption of Concepcion. (Sanchez v. Valencia

Holding Company, LLC (2015) 61 Cal.4th 889.) Indeed, courts are required to resolve any doubt

as to whether a dispute falls within an arbitration provision in favor of arbitration. (See id.)
-3-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 7
In this instance, there is no doubt that an agreement to arbitrate the subject transaction

exists. Plaintiff entered into the MVOA, and later the Lease, both containing the arbitration clause

in connection with the order and lease of the Vehicle. (See Lease, ¶ 3 [Exh. “B” to Kim Decl.];

MVOA, ¶ 2, [Exh. “A” to Kim Decl.) Therefore, it is without question that he was placed on

notice that either party to the Lease had the right to elect to arbitrate disputes arising from the

order or lease.

A.

By the terms of the relevant arbitration provision contained in the Lease, Plaintiff’s claims
Plaintiff’s Claims Are Subject to Arbitration Under the FAA.

are subject to arbitration pursuant to the FAA. (See Id.)

The FAA provides in pertinent part that:

A written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy
thereafter arising out of such contract or transaction, or the refusal to
perform the whole or any part thereof, or an agreement in writing to
submit to arbitration an existing controversy arising out of such a contract,
transaction, or refusal, shall be valid, irrevocable, and enforceable save
upon such grounds as exist at law or in equity for the revocation of any
contract. (9 U.S.C. § 2.)

Due to the “strong judicial policy favoring the submission of contractual disputes to

arbitration,” the requirement that the contract involve “commerce” is construed broadly. (See,

Concepcion, supra, 131 S.Ct. at 1745-46; Societe Generale de Surveillance, S.A. v. Raytheon

European Mgt. and Systems Co. (1st Cir. 1981) 643 F.2d 863, 867.) In Bernhardt v. Polygraphic

Co. (1956) 350 U.S. 198, 76 S.Ct. 273, the United States Supreme Court indicated that a contract

involves commerce where there is a “showing that petitioner while performing his duties under

the employment contract was working ‘in’ commerce, was producing goods for commerce, or

engaging in activity that affected commerce.” (Bernhardt, 350 U.S. at 200-01.) Here, Tesla does

business as an automobile manufacturer and retailer, and is unquestionably involved in the selling

of automobiles in the course of commerce, as that term is broadly defined in federal cases

interpreting the FAA.

The arbitration language in the MVOA and Lease are broad and require “any dispute”
-4-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 8
between Plaintiff and Tesla to be arbitrated. (See, MVOA [Exh. “A”] at p. 3; Lease [Exh. “B”] at

p. 3.) The claim in the Complaint arises out of the specific automobile sale transaction between

Plaintiff and Tesla, as Plaintiff acknowledges in the Complaint. (Compl. at ¶¶ 4, 5, 9, 11.)

Substantively, the claim is governed by the MVOA and Lease arbitration provision.
B.

The Parties’ Agreement to Arbitrate May Also Be Enforced Through the
Procedures Set Forth in the CAA.

Though the agreements are “subject to and governed by” the FAA, the Court may also

utilize the summary procedures contained in the California Arbitration Act to enforce the parties’

agreement to arbitrate. The interplay between state and federal arbitration law is succinctly

described in Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal. 4th 394. In

Rosenthal, the Supreme Court of California ruled agreements which, by their terms, are subject to

federal arbitration law may be enforced via the summary procedures provided by California

arbitration law. (See Id. at 409-10.) The Court stated “the California procedures for a summary

determination of the petition to compel arbitration serve to further, rather than defeat, the

enforceability policy of the USAA.” (Id. at 409.) The Court reasoned that “[l]ike other federal

procedural rules ... ‘“the procedural provisions of the [USAA] are not binding on the state courts

... provided applicable state procedures do not defeat the rights granted by Congress.’” (Id.)

(emphasis in original). Therefore, the agreement between Plaintiff and Tesla to arbitrate their

disputes, though governed by the FAA, can be enforced by this Court through the procedures

provided by California state arbitration law.
As the California Supreme Court has repeatedly confirmed, the comprehensive statutory

scheme regulating private contractual arbitration in this state under the CAA expresses the

“‘strong public policy in favor of arbitration as a speedy and relatively inexpensive means of

This procedure is succinctly stated in Cal. Civ. Proc. Code §1281.2, which states, in pertinent part, that
“On petition of a party to an arbitration agreement alleging the existence of a written agreement to
arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order
the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate
the controversy exists, unless it determines that (a) the right to compel arbitration has been waived by the
petitioner; or (b) Grounds exist for the revocation of the agreement.”
-5-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 9
dispute resolution’…Consequently, courts will ‘indulge every intendment to give effect to such

proceedings.’” (Moncharsh v. Heily & Blase (1992) 3 Cal. 4th 1, 9; see also, Sanchez, 61 Cal.4th

899.)

C.

The United States Supreme Court and California Supreme Court, pursuant to the FAA,

CAA and policy favoring arbitration, mandate that arbitration agreements be enforced; and, that

arbitration agreements can only be invalidated by generally applicable contract defenses, such as

fraud, duress, or unconscionability, which are not evident within the subject Lease. (See

Concepcion, 131 S.Ct. at 1746; see also Sanchez, 61 Cal.4th 899; Pinnacle Museum Tower

The Agreement is Valid and Enforceable.
Association v. Pinnacle Market Development (US), LLC (2012) 55 Ca1.4th 223, 245.)

In the instant case, a standard motor vehicle lease agreement containing an arbitration

clause, with substantively similar language to that which the California Supreme Court upheld in

Sanchez (and updated to provide further consumer protections), was used in connection with

Plaintiff’s lease of the Vehicle. (Sanchez, 61 Cal.4th 899 [“Commerce depends on the

enforceability, in most instances, of a duly executed written contract. A party cannot avoid a

contractual obligation merely by complaining that the deal, in retrospect, was unfair or a bad

bargain.”].) Standard form contracts are utilized by virtually every automobile dealership in the

State of California and many such contracts contain arbitration provisions. As such, arbitration

clauses are reasonably anticipated by consumers. The sale of a motor vehicle involves interstate

commerce, therefore the FAA clearly applies. Plaintiff was put on notice of the arbitration

provision when he executed the Lease. The Lease arbitration clause is outlined in a bold box and

its bold title “Agreement to Arbitrate” is clearly printed at the beginning of the section. (See,

Exh. “B” at p. 3 [emphasis in original.) The arbitration clause on page 3 of the Lease clearly

states that unless Plaintiff opts out of arbitration in writing within 30 days, then all future claims

were subject to arbitration. 3 (Id.) Tesla has never received notice from Plaintiff to opt out of

arbitration. (Kim, Decl., ¶ 4.)

The MVOA’s arbitration contains the same language but provides for a 60-day period to opt-out.
-6-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 10
Even before executing the Lease, Plaintiff was previously placed on notice of Tesla’s

intent to arbitrate any claims when he signed the MVOA at the time he placed the order for his

Vehicle. 4 (See, Exh. “A” at p. 3.) Therefore, unequivocally, the arbitration of this, or any dispute,

arising between the parties was reasonably anticipated based on the clear and conspicuous notice

located throughout the Lease.

Both parties have the right to demand arbitration and both parties have the same rights to

discovery. The rules of the American Arbitration Association (“AAA”) specified by the clause as

governing the resolution of disputes between the parties are regarded by courts to be neutral and

fair. (See Izzi v. Mesquite Country Club (1986) 186 Cal.App.3d 1309, 1318; Green Tree

Financial Corp. v. Randolph (2000) 531 U.S. 79, 95.) Furthermore, this lawsuit involves

consumers who purchased a product. A cost-sharing clause in an arbitration agreement such as

here requiring the parties to share costs equally is mutual and fair. In the present case, the cost

sharing clause is even fairer to Plaintiff in that it requires Tesla pay all arbitration costs on his

behalf. The arbitration clause is satisfactorily mutual, its provision of a forum presumptively

unbiased against one party, and the decision of the arbitrator is subject to judicial review. Even if

any provision were to be found unconscionable (which Moving Party disputes and would be

contrary to binding authority), the proper remedy is to sever it, not strike down the entire

arbitration agreement. (See Trabert v. Consumer Portfolio Services, Inc. (2015) 234 Cal.App.4th

1154, 1163-64; FAA, CAA, Civ. Code §§ 1599, 1670.5(a); see also, Concepcion, supra, 131 S.

Ct. at 1746 and Little v. Auto Stiegler, Inc. (2003) 29 Cal.App.4th 1064, 1074-75.)

D.

Despite the express terms of the Lease, Plaintiff refuses to arbitrate his claim with AAA,

by ignoring Tesla’s multiple attempts to meet and confer regarding arbitration. (See, Tanner

Decl., ¶ 3, Exhs. “D,” “E,” and “F”.)

This Matter Should Be Ordered to Arbitration with AAA.
This Court should order this action to binding arbitration with AAA pursuant to the

The MVOA also contains an arbitration provision notifying Plaintiff of Tesla’s intent to arbitrate any
claims with AAA. (See, Exh. “A” at p. 3.)

-7-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 11
express terms of the arbitration clause and California Code of Civil Procedure section 1281.6,

which states “[i]f the arbitration agreement provides a method of appointing an arbitrator, that

method shall be followed.” (emphasis added.) Both federal and California courts have

additionally found that arbitration clauses like the one at issue should be followed. (See

Armendariz, supra, 24 Cal.4th at 97.) Pursuant to the terms of the MVOA and Lease, the parties

have already repeatedly expressly agreed to use AAA. The arbitration agreement is “self-

executing” (where it incorporates by reference procedural rules), so Tesla should be able to

proceed with arbitration in AAA. (See, Tutti Mangia Italian Grill, Inc. v. American Textile

Maintenance Co. (2011) 197 Cal.App.4th 733, 738-39; Kustom Kraft Homes v. Leivenstein

(1971) 14 Cal.App.3rd 805, 811; AAA Consumer Arbitration Rules, Rule R-39 [The arbitration

may proceed even if any party or representative is absent, so long as proper notice was given and

that party or representative fails to appear or obtain a postponement from the arbitrator.].)

To allow Plaintiff to unilaterally avoid binding arbitration by filing the instant lawsuit

would deny the express terms of the arbitration clause in contravention of Code of Civil

Procedure section 1281.6 and the established precedent of this Court.

E.
This Matter Must Be Stayed While the Application to Arbitration is Pending
Through the Conclusion of Arbitration.

Code of Civil Procedure section 1281.4 provides in pertinent part that “[i]f an application

has been made to a court …for an order to arbitrate...and such application is undetermined…the

court ...shall...stay the action or proceeding until the application…is determined.” “This statute is

clear and unambiguous: it requires that the trial court stay an action pending before it while an

application to arbitrate the subject matter of the action is pending in a court of competent

jurisdiction.” (Twentieth Century Fox Film Corp. v. Sup. Ct. (2000) 79 Cal.App.4th 188, 192; see

also, Heritage Provider Network, Inc. v. Sup. Ct. (2008) 158 Cal.App.4th 1146, 1152.)

Code of Civil Procedure section 1281.4 also provides:
If a court of competent jurisdiction, whether in this state or not, has ordered
arbitration of a controversy which is an issue involved in an action or
proceeding pending before a court of this State, the court in which such action
-8-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 12
or proceeding is pending shall, upon motion of a party to such action or
proceeding, stay the action or proceeding until an arbitration is had in
accordance with the order to arbitrate or until such earlier time as the court
specifies.

Accordingly, Moving Party requests that in addition to ordering the present matter to

binding arbitration with AAA and staying the action until the arbitration is concluded, that this

Court also stay the proceedings in this matter as to all parties while this application to arbitrate is

pending.

IV.
CONCLUSION

The Moving Party has established the existence of a written arbitration agreement which

covers this entire action. For the reasons stated above, the Moving Party respectfully requests this

Court grant this Petition to compel arbitration pursuant to the terms and conditions of the

arbitration clause attached to this Petition, and order this action to arbitration with the American

Arbitration Association. In addition, the Court should order this lawsuit be stayed pending the

completion of arbitration.

Dated: June 10,
Respectfully submitted,
TESLA, INC.

By:___________________________________
BRADLEY M. TANNER
Attorney for Defendant Tesla, Inc.
-9-
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 13 DECLARATION OF RAYMOND KIM

I, Raymond Kim declare and state as follows:

1.
I am employed as an Staff Business Resolution Partner for Tesla, Inc. (“Tesla”),

Defendant in the above matter. The facts set forth in this Declaration are based on my own

personal knowledge, and, if called upon as a witness, I could and would competently testify

thereto. In my position, I am familiar with the service and sales of Tesla vehicles, including the

related creation and record-keeping procedures. I am also familiar with those processes as of the

date of the subject transaction involving Plaintiff Leonardo Balter (“Plaintiff”).

2.
On April 8, 2021, Plaintiff placed an order for his Vehicle, agreed to the terms of

the Motor Vehicle Order Agreement (“MVOA”) A true and correct copy of the MVOA executed

by Plaintiff for the Vehicle is attached as Exhibit “A.”

3.
On or about April 10, 2021, Plaintiff completed the lease of the Vehicle, and

entered into a written contract with Tesla for the lease of new 2020 Tesla Model Y, VIN

5YJYGDEF5LF000097 (the “Vehicle”) pursuant to the aforementioned Lease. A true and correct

copy of the Lease Agreement (“Lease”) between Plaintiff and Tesla which contains the binding

arbitration provision, and which is signed by Plaintiff is attached as Exhibit “B,” and by this

reference is incorporated as though in full.

4.
Tesla has never received notice from Plaintiff to opt out of arbitration. Tesla did

not receive an opt out to the arbitration provision within the 60 day period as prescribed in the

MVOA, or the 30-day period allowed in the Lease, and has no record that Plaintiff ever opted out

of arbitration of the MVOA or Lease.

5.
Based on the above, Plaintiff accepted the terms and conditions of the MVOA and

Lease in this matter, including the arbitration provisions identified above. I know this to be true

because the MVOA and Lease would not end up in Tesla’s internal system where I retrieved it

from had he not executed these documents. Further the documents are executed by Plaintiff.

///
- 10 -
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 14
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this 10th day of June, 2022 in Los Angeles, California.

_____________________,
Raymond Kim
- 11 -
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Page 15 DECLARATION OF BRADLEY M. TANNER

I, Bradley M. Tanner, declare as follows:

1. I am an attorney duly licensed to practice law before all courts of the State of California. I

am a Senior Counsel for Consumer Litigation at Tesla, Inc. and representing Tesla, Inc. (the

“Moving Party”) in this action. This declaration is submitted in support of Moving Party’s

Petition to Compel Arbitration with AAA and Stay Proceedings Pending Outcome of Arbitration

(“Petition”). The following facts are within my personal knowledge and, if called as a witness

herein, I can and will competently testify thereto.

2. Attached as Exhibit “C” is a true and correct copy of Plaintiff’s Complaint in this action,
filed May 11, 2022.

3. On May 28, and June 8, 2022, Tesla sent emails to Plaintiff’s counsel to discuss the matter

and requesting Plaintiff agree to arbitrate the matter with AAA under the lease terms. Attached as

Exhibits “D,” “E,” and “F” respectively are Tesla’s emails to Plaintiff’s counsel to stipulate to

arbitration, sent on May 28, 2022, and two emails on June 8, 2022.

4. Plaintiff’s counsel responded they refuse to stipulate to arbitration, but when pressed for a

good faith legal basis based on the MVOA and Lease, Plaintiff did not provide any further

response.

5. Dispute Tesla’s efforts, as of the filing of this Petition, Plaintiff has ignored Tesla’s meet
and confer attempts, and has failed to agree to stipulate under the arbitration provision.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed this 10th day of June 2022, at San Francisco, California.
By ______________________
Bradley M. Tanner
- 12 -
DEFENDANT TESLA’S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION WITH AAA AND STAY
PROCEEDINGS PENDING OUTCOME OF ARBITRATION
Space
Issues Laws Cases Pro Articles Firms Entities
Issues Laws Cases Pro Articles Firms Entities
 
PlainSite
Sign Up
Need Password Help?