Alfredo Fuentes v. TMCSF,Inc.

Plaintiff Alfredo Fuentes entered into a written agreement with defendant TMCSF,

Inc., doing business as Riverside Harley-Davidson (Riverside), to buy a motorcycle. At

the same time, he entered into a written agreement with Eaglemark Savings Bank

(Eaglemark) to finance the purchase. The latter agreement included an arbitration clause;

the former agreement did not.

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Fuentes then filed this action against Riverside, alleging that Riverside made

various misrepresentations and violated various statutes in connection with the sale of the

motorcycle. Riverside petitioned to compel arbitration. The trial court denied the

petition.

We will hold that Riverside was not entitled to compel arbitration because it was

not a party to the arbitration clause, it was not acting in the capacity of an agent of a party

to the arbitration clause, and it was not a third party beneficiary of the arbitration clause.

Moreover, Fuentes was not equitably estopped to deny Riverside’s claimed right to

compel arbitration. Hence, we will affirm.

I

FACTUAL BACKGROUND

The following facts are taken from the evidence submitted in connection with

Riverside’s petition to compel arbitration.

On April 19, 2015, Fuentes entered into a written agreement to buy a new

motorcycle from Riverside (Purchase Agreement). The stated parties to the Purchase

Agreement were Fuentes and Riverside. The Purchase Agreement provided, “Federal

law and California law apply to this . . . Purchase Agreement.” The Purchase Agreement

did not include an arbitration clause.

At the same time, Fuentes also entered into a written agreement to finance the

purchase (Security Agreement). The stated parties to the Security Agreement were

Fuentes and Eaglemark Savings Bank (Eaglemark). Eaglemark identified itself as “a

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subsidiary of Harley-Davidson Credit Corp.” “ESB” was defined as Eaglemark and its

successors and assigns. The Security Agreement was signed only by Fuentes; no one

signed it on Eaglemark’s behalf.

The Security Agreement included an “Itemization of Amount Financed”

(capitalization altered), which specified that, aside from sales taxes and license fees

payable to the government, Eaglemark was to pay the loan proceeds to Riverside.

The Security Agreement also included an arbitration clause, which, as relevant

here, provided: “The parties acknowledge and agree that this clause and the Federal

Arbitration Act (9 U.S.C. § 1 et seq.) shall govern any and all Claims (defined below)

between You . . . on the one hand, and ESB and/or any of ESB’s successors, assigns,

parents, subsidiaries, or affiliates and/or any employees, officers, directors, agents, of the

aforementioned on the other hand. The parties agree to arbitrate any and all claims,

controversies, or disputes including but not limited to those arising out of or relating in

any way to Your loan or account, this [Security Agreement], advertising or claims

relating to this [Security Agreement] or the sale of this [Security Agreement], . . . as well

as recovery of any claim under this [Security Agreement] (collectively ‘Claims’). Any

Claims, including but not limited to the applicability of this arbitration clause, shall be

resolved by neutral binding arbitration . . . .”

It also provided, “[T]his [Security Agreement] . . . will be governed by the laws of

the State of Nevada and applicable Federal law.”

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Finally, it included a provision, required by federal law (16 C.F.R. § 433.2),

stating: “Any holder of this consumer credit contract is subject to all claims and defenses

which the debtor could assert against the seller of goods or services obtained with the

proceeds hereof.”

II

PROCEDURAL BACKGROUND

Fuentes brings this action as a putative class action. The operative complaint

alleges that Riverside and other defendants “routinely advertise new, assembled

motorcycles to consumers in a misleading manner . . . . As a consequence . . . ,

consumers are routinely misled about the true prices of buying new, assembled

motorcycles, and end up paying fees and charges which are: (a) misrepresented, inflated,

or double-billed; (b) false and fraudulent; (c) illusory; and/or (d) improperly disclosed,

itemized, and/or summed.” It asserts causes of action for negligence, false advertising,

unfair competition, and violations of the Consumers Legal Remedies Act (Civ. Code,

§ 1750 et seq.).

Riverside filed a petition to compel arbitration. After hearing argument, the trial

court denied the petition.

It explained: “The arbitration provision is solely in the agreement between

[Fuentes] and Eaglemark . . . , to which [Riverside] was not a party. The agreement

expressly identifies the scope of the obligation to arbitrate as being limited to those

‘between’ plaintiff ‘on the one hand, and ESB and/or any of ESB’s successors, assigns,

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parents, subsidiaries, or affiliates . . . on the other hand.’ In light of that language, there

is no intent that the arbitration provision extend to claims between the plaintiff and a third

party like [Riverside]. Nor is the [court] persuaded that [Fuentes] is equitably estopped

from denying the application of the arbitration provision to this lawsuit.”

III

RIVERSIDE HAS NO STANDING TO INVOKE THE ARBITRATION CLAUSE

A. General Legal Principles.

“‘Code of Civil Procedure section 1281.2 allows a party to an arbitration

agreement to petition to compel arbitration. By stating that a party to an arbitration

agreement may petition to compel arbitration, the statute assumes that a proceeding to

compel arbitration will be between the signatories to the agreement.’ [Citation.]

“‘Nonsignatory defendants may enforce arbitration agreements “where there is

sufficient identity of parties.” [Citation.] Enforcement is permitted where the

nonsignatory is the agent for a party to the arbitration agreement [citation], or the

nonsignatory is a third party beneficiary of the agreement [citation]. In addition, a

nonsignatory may enforce an arbitration agreement under the doctrine of equitable

estoppel.” (Jenks v. DLA Piper Rudnick Gray Cary U.S. LLP (2015) 243 Cal.App.4th 1,

8-9, fn. omitted.)

“Where, as here, the evidence is not in conflict, we review the trial court’s denial

of arbitration de novo. [Citation.]” (Pinnacle Museum Tower Assn. v. Pinnacle Market

Development (US), LLC (2012) 55 Cal.4th 223, 236.)

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We face a preliminary question regarding choice of law. The Security Agreement,

which contains the arbitration clause, provides that Nevada law applies. In their briefs,

however, the parties do not discuss Nevada law; the only state law on which they rely is

that of California.1

“‘“[G]enerally speaking the forum will apply its own rule of decision

unless a party litigant timely invokes the law of a foreign state . . . .”’ [Citations.]”

(Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 919.) Because

“[t]he parties and the trial court assumed that California law applies . . . we may apply

California law . . . .” (Brown v. Grimes (2011) 192 Cal.App.4th 265, 275.)

B. Standing as a Party.

Riverside contends that the Purchase Agreement and the Security Agreement

constitute a single contract, and hence it is a party to the arbitration clause.

Under Civil Code section 1642, “[s]everal contracts relating to the same matters,

between the same parties, and made as parts of substantially one transaction, are to be

taken together.” Here, the Purchase Agreement and the Security Agreement, by their

terms, were not between the same parties; thus, Civil Code section 1642 does not apply.

More generally, however, “where two or more written instruments are executed

contemporaneously, with reference to each other, for the purpose of attaining a

preconceived objective, they must all be construed together and effect given if possible to

the purpose intended to be accomplished; and this principle controls whether each of the



1

Indeed, Riverside concedes that “Nevada substantive law [does not] apply

in this context.”

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several instruments was signed by all or only some of the parties to the transaction.

[Citation.]” (Goodman v. Severin (1969) 274 Cal.App.2d 885, 895.)

“‘While it is the rule that several contracts relating to the same matters are to be

construed together [citation], it does not follow that for all purposes they constitute one

contract.’” (Hartford Accident & Indemnity Co. v. Sequoia Ins. Co. (1989) 211

Cal.App.3d 1285, 1300.) The rule is simply a particular application of the more general

principle that “[w]e construe [a] contract in light of the circumstances under which it was

made . . . . [Citation.]” (Medical Staff of Doctors Medical Center in Modesto v. Kamil

(2005) 132 Cal.App.4th 679, 683.)

For example, in Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582,

two corporations entered into an agreement to merge (Merger Agreement), which

included an attorney fee clause. (Id. at pp. 1588, 1591, 1605-1606.) At the same time,

the president of one of the corporations (see id. at p. 1587) entered into an agreement

with the other corporation regarding the stock that he acquired in the merger (Affiliate

Agreement); it did not include an attorney fees clause. (Id. at pp. 1588, 1591, 1606.)

Ultimately, the president sued the other corporation, asserting causes of action based on

the Affiliate Agreement, but lost. (Id. at pp. 1590-1591, 1605.)

The prevailing corporation argued that it was entitled to attorney fees because

(among other things) “the Affiliate and Merger [A]greements were interdependent

components of the same transaction and, therefore, should be construed together.”

(Amtower v. Photon Dynamics, Inc., supra, 158 Cal.App.4th at p. 1609.) The appellate

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court held that the attorney fee clause did not apply. It acknowledged the general

principal that separate contracts, entered into as part of a single transaction, even if by

different parties, must be construed together. (Id. at pp. 1609-1610, citing Harm v.

Frasher (1960) 181 Cal.App.2d 405.) Nevertheless, it concluded that “nothing in

Frasher, or the general rule as stated in Civil Code section 1642, supports the conclusion

that, where the contracts form part of a single integrated transaction, a discrete term

contained in one agreement is necessarily applicable to the parties to one of the other

agreements.” (Id. at p. 1610.)

In sum, then, the fact that the Purchase Agreement and the Security Agreement

could be considered one transaction is not dispositive. Rather, just as when any issue

turns on contractual interpretation, we must look to the mutual intent of the parties. (Civ.

Code, § 1636; Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010)

50 Cal.4th 1370, 1378.) “‘Such intent is to be inferred, if possible, solely from the

written provisions of the contract.’ [Citations.] ‘If contractual language is clear and

explicit, it governs.’ [Citation.]” (State of California v. Continental Ins. Co. (2012) 55

Cal.4th 186, 195.)

The arbitration clause itself specified the entities to which it applied. It applied to

“Claims . . . between You . . . on the one hand, and ESB and/or any of ESB’s successors,

assigns, parents, subsidiaries, or affiliates and/or any employees, officers, directors,

agents, of the aforementioned on the other hand.” To state the obvious, Riverside is not

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Eaglemark. Also, as far as the record shows, Riverside is not a successor, assign, parent,

subsidiary,2 affiliate,3 employee, officer, or director of Eaglemark.

In sum, then — leaving aside Riverside’s claim that it was an agent of Eaglemark,

which we discuss in part III.C, post — Riverside was not a party to the arbitration clause

and was not a nonparty expressly specified as able to invoke the arbitration clause.

C. Standing as an Agent.

Riverside contends that it is entitled to compel arbitration because it is an agent of

Eaglemark. As mentioned, the arbitration clause required arbitration of claims between

Fuentes and Eaglemark’s agents. And even when an arbitration clause does not expressly

extend to agents, an agent for a party may be able to enforce an arbitration clause.

Riverside asserts that it was Eaglemark’s agent because it could bind Eaglemark as

the lender in any given motorcycle sale transaction. (See Rental Housing Owners Assn.

of Southern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 91

[agency is a relationship in which “one party, the agent, ‘represents another, called the

principal, in dealings with third persons.’”].) We disagree, for three reasons.



2 Riverside repeatedly refers to Eaglemark as “the subsidiary lender” or

simply “the subsidiary.” From the context, this seems to mean merely that Eaglemark

was subject to all claims and defenses that the buyer could assert against Riverside.

However, it is an odd and potentially misleading term to use to describe this concept.

3

In the trial court, counsel for Riverside conceded that there was “not

sufficient evidence before the Court” to show that Riverside was an affiliate of

Eaglemark.

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First, there was no evidence that Riverside actually had this power. “Because the

existence of agency is generally a question of fact, it logically follows that agency must

be established with evidence.” (Zimmerman v. Superior Court (2013) 220 Cal.App.4th

389, 401.) Here, all the evidence showed was that Fuentes entered into a financing

agreement on Riverside’s premises on the same day as he purchased a motorcycle from

Riverside. For all we know, Riverside had to contact Eaglemark and obtain its approval

for each and every financing agreement.

Riverside asserts a number of facts which, in its view, prove agency. These

include that: (1) “A typical motor vehicle sale is conditioned upon the sale being

financed after a purchase.” (2) “Harley-Davidson purchases” are “unique” in that “the

motorcycle sale and financing occur at the same time.” (3) “[T]he purchase price is paid

specifically to the dealer simultaneously with the lender obtaining a security interest in

the motorcycle.” However, there was no evidence of any of these facts. Again, all the

evidence showed was that the customer entered into the two agreements at the same time.

Riverside also points to the boilerplate allegation of Fuentes’s complaint that all of

the defendants were agents of each other. The named defendants included Riverside,

Harley-Davidson, Inc., and Harley-Davidson Motor Company, Inc., but they did not

include Eaglemark. To fill this logical gap, Riverside notes that the Security Agreement

identified Eaglemark as “[a] subsidiary of Harley-Davidson Credit Corp.” However, the

named defendants also did not include Harley-Davidson Credit Corp. There is no

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evidence regarding the relationship, if any, between Harley-Davidson Credit Corp. and

the named defendants.

Second, as a general rule, a dealer does not act as the agent of the financing

agency simply because the dealer used forms supplied by the financing agency. (Bescos

v. Bank of America (2003) 105 Cal.App.4th 378, 396; LaChapelle v. Toyota Motor Credit

Corp. (2002) 102 Cal.App.4th 977, 992; see also Luck v. Primus Automotive Financial

Services, Inc. (Ala. 2000) 763 So.2d 243, 246-247 [lender provided dealer with forms and

with a handbook containing guidelines for leases that it would accept].) Riverside may

be aware of these cases; it appears to be trying to get around them by arguing that HarleyDavidson

financing is “unique.” As already discussed, however, they have not shown

that it is unique in any way that would prove agency.

Third, even assuming that Riverside was Eaglemark’s agent, Fuentes’s claims are

made against Riverside in its own capacity, not in its (supposed) capacity as Eaglemark’s

agent. This precludes Riverside from invoking the arbitration clause. (McCarthy v.

Azure (1st Cir. 1994) 22 F.3d 351, 359-361 [where plaintiff and corporation, but not

corporation’s agent, were parties to arbitration clause, agent could not compel arbitration

of plaintiff’s claims against him in his individual capacity].) Eaglemark had no reason to

give its agents a right to compel arbitration of their own disputes with its borrowers.

“However broad may be the terms of a contract, it extends only to those things

concerning which it appears that the parties intended to contract.” (Civ. Code, § 1648.)

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“Most courts have held that a nonsignatory who is the agent of a party to a

contract containing an arbitration clause may compel the other parties to the contract to

arbitrate their claims against him or her for liability arising out of the contract . . . but not

other claims. [Citations.]” (Knight et al., Cal. Practice Guide: Alternative Dispute

Resolution (The Rutter Group 2017) ¶ 5.266.5, p. 5-274, ellipsis in original.) Riverside’s

asserted liability arises out of the Purchase Agreement, not out of the Security

Agreement.

D. Standing as a Third Party Beneficiary.

Next, Riverside contends that it was entitled to enforce the arbitration clause as a

third party beneficiary of the Security Agreement. It points out that it was the intended

recipient of the loan proceeds.

“A third party beneficiary may enforce a contract expressly made for his benefit.

[Citation.] And although the contract may not have been made to benefit him alone, he

may enforce those promises directly made for him. [Citations.]” (Murphy v. Allstate Ins.

Co. (1976) 17 Cal.3d 937, 943.)

But “a third party beneficiary . . . can only enforce those promises made directly

for his benefit. [Citation.]” (Clark v. California Ins. Guarantee Assn. (2011) 200

Cal.App.4th 391, 398.) “A third party should not be permitted to enforce covenants made

not for his benefit, but rather for others. He is not a contracting party; his right to

performance is predicated on the contracting parties’ intent to benefit him. [Citations.]

As to any provision made not for his benefit but for the benefit of the contracting parties

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or for other third parties, he becomes an intermeddler.” (Murphy v. Allstate Ins. Co.,

supra, 17 Cal.3d at p. 944 [judgment creditor of insured tortfeasor is a third party

beneficiary of the insurance policy but cannot enforce the policy’s covenant of good

faith].)

Turning to the specific topic of arbitration, “a third party beneficiary of an

arbitration agreement may enforce it. [Citations.]” (Ronay Family Limited Partnership

v. Tweed (2013) 216 Cal.App.4th 830, 838.) But “[t]o invoke the third party beneficiary

exception, [a third party beneficiary] ha[s] to show that the arbitration clause . . . was

‘made expressly for [its] benefit.’ [Citation.]” (Ibid., italics added.)

We accept, for the sake of argument, that Riverside was the third party beneficiary

of Eaglemark’s promise to pay the loan proceeds to it. The arbitration clause, however,

had its own list of intended third party beneficiaries; as we have already discussed,

Riverside was not among them. Thus, the contract affirmatively disproves any intent that

the arbitration clause should benefit Riverside.

What is particularly overreaching about Riverside’s third party beneficiary

argument is that it is trying to enforce the arbitration clause against Fuentes. However, it

was Fuentes who — by making a promise to repay, a promise to pay interest, and other

promises — conferred on Riverside its right to the loan proceeds. If Riverside has any

rights as a third party beneficiary, they should run against Eaglemark, not Fuentes.

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E. Standing as a Result of Equitable Estoppel.

Finally, Riverside contends that Fuentes is equitably estopped to deny the

applicability of the arbitration clause.

“A nonsignatory plaintiff may be estopped from refusing to arbitrate when he or

she asserts claims that are ‘dependent upon, or inextricably intertwined with,’ the

underlying contractual obligations of the agreement containing the arbitration clause.

[Citation.] ‘The focus is on the nature of the claims asserted . . . .’ [Citation.] . . .

‘“[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.’” [Citation.] ‘[E]ven if a plaintiff’s claims “touch

matters” relating to the arbitration agreement, “the claims are not arbitrable unless the

plaintiff relies on the agreement to establish its cause of action.’” [Citation.] ‘The

fundamental point’ is that a party is ‘not entitled to make use of [a contract containing an

arbitration clause] as long as it worked to [his or] her advantage, then attempt to avoid its

application in defining the forum in which [his or] her dispute . . . should be resolved.’

[Citation.]” (Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 306, italics

in original.)

We do not perceive any way in which Fuentes is relying on the Security

Agreement to establish his own causes of action. Riverside argues: “Th[e] allegedly

false price and costs were advertised at the time of sale contemporaneously with

[Fuentes]’s acquiring the loan to finance his motorcycle purchase. [Riverside] then

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inputted those allegedly false costs in the [Security Agreement], which [Fuentes] signed

at [Riverside].” As we understand this, it reduces to an argument that the loan includes

the amount of the improper charges and fees. That merely means that Fuentes may have

a defense to paying the full amount of the loan to Eaglemark. Arguably, he would be

relying on the Purchase Agreement in any action attacking the Security Agreement. But

this is not a two-way street. He is not relying on the Security Agreement in this action

attacking the Purchase Agreement. Even if he had paid cash for the motorcycle, his

complaint would be identical.

Riverside points out that its counsel argued that “without this [Security

Agreement], [Fuentes] would not have a case,” and the trial court responded, “That may

be true.” However, it immediately went on to rule that Fuentes was not estopped to

dispute that. In context, it appears to have been merely accepting counsel’s position for

the sake of argument. In any event, as our review is de novo, we are not bound by any

findings (much less comments) by the trial court.

We therefore conclude that equitable estoppel does not apply.

The order appealed from is affirmed. Fuentes is awarded costs on appeal against

Riverside.