Kim Ngo v. Bmw of North America, LLC ( 2022 )


Menu:
  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    KIM NGO,                                          No. 20-56027
    Plaintiff-Appellant,
    D.C. No.
    v.                          2:20-cv-06197-
    MWF-GJS
    BMW OF NORTH AMERICA, LLC;
    BMW AKTIENGESELLSCHAFT; DOES,
    1 THROUGH 10, INCLUSIVE,                            OPINION
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Michael W. Fitzgerald, District Judge, Presiding
    Argued and Submitted November 16, 2021
    Pasadena, California
    Filed January 12, 2022
    Before: Kim McLane Wardlaw, Barrington D. Parker, *
    and Andrew D. Hurwitz, Circuit Judges.
    Opinion by Judge Parker
    *
    The Honorable Barrington D. Parker, United States Circuit Judge
    for the Second Circuit, sitting by designation.
    2             NGO V. BMW OF NORTH AMERICA
    SUMMARY **
    Arbitration
    The panel reversed the district court's order compelling
    arbitration in an action brought by Kim Ngo, a purchaser of
    a BMW, alleging breach of warranty.
    Because the dealership financed Ngo’s purchase, they
    entered into a purchase agreement, which contained an
    arbitration clause. As a result of alleged defects with the car,
    Ngo sued BMW of North America, LLC (“BMW”), the
    manufacturer, which was not a signatory to the purchase
    agreement. BMW moved to compel arbitration. The district
    court granted the motion to compel arbitration, finding
    BMW to be a third-party beneficiary.
    The panel applied California law to determine whether a
    non-signatory to an agreement containing an arbitration
    clause may compel arbitration. Under California law, a non-
    signatory is a third-party beneficiary only to a contract made
    expressly for its benefit.
    The panel applied the three-part test in Goonewardene v.
    ADP, LLC, 
    6 Cal. 5th 817
    , 830 (2019). First, a third party
    must in fact benefit from the contract. Here any benefit that
    BMW might receive from the clause was peripheral and
    indirect because it was predicated on the decisions of others
    to arbitrate. Second, the contracting parties must have had a
    “motivating purpose” of providing a benefit to the third
    party. The panel held that BMW failed to demonstrate the
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    NGO V. BMW OF NORTH AMERICA                     3
    requisite “motivating purpose” where the vehicle purchase
    agreement in question was drafted with the primary purpose
    of securing benefits for the contracting parties themselves,
    and third parties were not the purposeful beneficiaries of
    such an undertaking. Third, permitting the third party to
    enforce the contract must be consistent with the “objectives
    of the contract” and the “reasonable expectations of the
    contracting parties.” The panel held that nothing in the
    contract here evinced any intention that the arbitration clause
    should apply to BMW. BMW’s relative proximity to the
    contract confirmed that the parties easily could have
    indicated that the contract was intended to benefit BMW –
    but they did not do so.
    The panel rejected BMW’s contention that equitable
    estoppel allowed it to compel arbitration. California permits
    non-signatories to invoke arbitration agreements under the
    doctrine of equitable estoppel under two circumstances. The
    second basis for equitable estoppel did not apply because
    Ngo did not allege any “concerted misconduct” between the
    other signatory (the dealership) and either of the parties. The
    first basis requires that Ngo either rely on the terms of the
    purchase agreement or make claims that were intimately
    founded in and intertwined with it. The panel held that
    BMW was mistaken that, under the Song-Beverley and the
    Magnuson-Moss Warranty Acts, Ngo’s claims were
    inextricably intertwined with terms of the purchase
    agreement. The panel rejected BMW’s argument that
    equitable estoppel was broadened by the recent decision in
    Felisilda v. FCA US LLC, 
    53 Cal. App. 5th 486
     (2020). The
    panel therefore declined to affirm on the ground of equitable
    estoppel.
    4           NGO V. BMW OF NORTH AMERICA
    COUNSEL
    Jennifer D. Bennett (argued), Gupta Wessler PLLC, San
    Francisco, California; Matthew W.H. Wessler, Gupta
    Wesler PLLC, Cambridge, Massachusetts.; Payam Shahian,
    Strategic Legal Practices, Los Angeles, California; for
    Plaintiff-Appellant.
    Thomas M. Peterson, Morgan Lewis & Bockius LLP, San
    Francisco, California; Karyn L. Ihara, Morgan Lewis &
    Bockius LLP, Los Angeles, California; for Defendants-
    Appellees.
    OPINION
    PARKER, Circuit Judge:
    In 2012, Kim Ngo bought a new BMW 535i sedan from
    Peter Pan Motors, Inc, a car dealership. Because the
    dealership financed Ngo’s purchase, they entered into a
    purchase agreement which contained an arbitration clause.
    As a result of alleged defects with the car, Ngo sued BMW
    of North America, LLC (“BMW”), the manufacturer, which
    was not a signatory to the purchase agreement. The question
    presented to us is whether BMW may compel arbitration
    under the purchase agreement between Ngo and the
    dealership. We conclude that it cannot, and we reverse the
    district court’s order compelling arbitration.
    I.
    The purchase agreement listed Ngo as the “Buyer,” the
    dealership as the “Creditor-Seller,” and BMW Bank of
    North America (the financing company to which the
    NGO V. BMW OF NORTH AMERICA                      5
    purchase agreement referred) as the “Assignee.” The
    arbitration clause provided:
    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 the claim or dispute), between
    you and us or our employees, agents,
    successors, or assigns, which arises out of or
    relates to your credit application, purchase or
    condition of this vehicle, this contract or any
    resulting     transaction      or      relationship
    (including any such relationship with third
    parties who do not sign this contract) shall, at
    your or our election, be resolved by neutral,
    binding arbitration and not by a court action
    ....
    The purchase agreement also stated that it had no effect on
    any “warranties covering the vehicle that the vehicle
    manufacturer may provide.”
    Ngo had a variety of issues with her car. Allegedly, the
    engine shook violently on start-up, the back-up camera was
    defective, the spark plugs were faulty, the sunroof was
    broken, the brake rotors were warped, and the radiator hose
    leaked. Although Ngo took her car to authorized BMW
    facilities for a series of repairs, the problems persisted.
    BMW expressly warrants its vehicles “against defects in
    materials or workmanship.” BMW’s warranty offers
    purchasers the option of non-binding mediation through the
    Better Business Bureau, but it also makes clear that
    6           NGO V. BMW OF NORTH AMERICA
    dissatisfied consumers may sue in court. Under California’s
    Song-Beverly Consumer Warranty Act (“Song-Beverly
    Act”), a manufacturer that is unable to repair a new vehicle
    to conform to its warranty must promptly replace or
    repurchase the vehicle. 
    Cal. Civ. Code § 1793.2
    (d)(2). The
    federal Magnuson-Moss Warranty Act (“Magnuson-Moss
    Act”) imposes similar requirements. See 
    15 U.S.C. § 2304
    (a)(4). When BMW refused to replace or repurchase
    the car, Ngo brought the present action, alleging violations
    of the Song-Beverly and the Magnuson-Moss Acts.
    Ngo’s complaint named only BMW as a defendant. Her
    first, second, third, and fourth claims assert breaches of an
    express warranty. Her fifth claim alleges breach of the
    implied warranty of merchantability. Her sixth claim, based
    on the Magnuson-Moss Act, will “stand or fall with [the]
    express and implied warranty claims under state law.”
    Clemens v. DaimlerChrysler Corp., 
    534 F.3d 1017
    , 1022
    (9th Cir. 2008).
    BMW moved to compel arbitration, invoking the
    arbitration clause in the purchase agreement between Ngo
    and the dealership, arguing that it was a third-party
    beneficiary of the arbitration clause. Alternatively, BMW
    invoked equitable estoppel, arguing that Ngo’s claims were
    “intimately founded in and intertwined with” the purchase
    agreement.
    The district court granted the motion to compel
    arbitration, finding BMW to be a third-party beneficiary, but
    not addressing equitable estoppel. The court held that BMW
    was a third-party beneficiary because:
    First, the arbitration provision here
    specifically calls for the arbitration of any
    claim dealing with the “purchase or condition
    NGO V. BMW OF NORTH AMERICA                   7
    of the vehicle” including a claim involving
    “third parties who do not sign this contract.”
    ***
    Second, if there is any doubt as to whether
    this “third party” clause should be read to
    include BMW NA, BMW Bank, a subsidiary
    of BMW NA, is an assignee of the arbitration
    provision and the Purchase Agreement. In
    other words, BMW NA is not some random
    third party, but is affiliated with the assignee
    of the agreement itself.
    ***
    Third, BMW NA was responsible for the
    warranty on the Vehicle, and the “vehicle
    manufacturer” (which is BMW NA) is
    explicitly mentioned in the Purchase
    Agreement.
    The court then dismissed the complaint and Ngo appealed.
    II.
    State law determines whether a non-signatory to an
    agreement containing an arbitration clause may compel
    arbitration. Arthur Andersen LLP v. Carlisle, 
    556 U.S. 624
    ,
    631–32 (2009). Under California law, a non-signatory is a
    third-party beneficiary only to a contract “made expressly
    for [its] benefit.” 
    Cal. Civ. Code § 1559
    . BMW was
    obligated to prove that “express provisions of the contract,”
    considered in light of the “relevant circumstances,” show
    that (1) “the third party would in fact benefit from the
    8            NGO V. BMW OF NORTH AMERICA
    contract;” (2) “a motivating purpose of the contracting
    parties was to provide a benefit to the third party;” and
    (3) permitting the third party to enforce the contract “is
    consistent with the objectives of the contract and the
    reasonable expectations of the contracting parties.”
    Goonewardene v. ADP, LLC, 
    6 Cal. 5th 817
    , 830 (Cal.
    2019). BMW fails this test.
    First, a third party must “in fact benefit from the
    contract.” 
    Id.
     But a third party that “only incidentally or
    remotely benefit[s]” from a contract does not meet this
    standard. Lucas v. Hamm, 
    56 Cal. 2d 583
    , 590 (1961); see
    also Levy v. Only Cremations for Pets, Inc., 
    271 Cal. Rptr. 3d 250
    , 257–58 (Cal. Ct. App. 2020). Here, the arbitration
    clause expressly states that only three parties—Ngo, the
    dealership, and the assignee—may compel arbitration. The
    contract defines “you” as Ngo and “we” as the dealership
    and its assignee. The clause specifies that “[e]ither you or we
    may choose to have any dispute between us decided by
    arbitration and not in court or by jury trial.” (emphasis
    added). The clause also states that “[a]ny claim or dispute
    . . . between you and us or our employees, agents,
    successors, or assigns . . . which arises out of or relates to
    your credit application, purchase or condition of this
    Vehicle, this contract or any resulting transaction or
    relationship (including any such relationship with third
    parties who do not sign this contract) . . . shall, at your or our
    election, be resolved by neutral, binding arbitration and not
    by a court action . . .” (emphasis added).
    The district court found, and BMW argues on appeal,
    relying on Hajibekyan v. BMW of North America, LLC,
    839 F. App’x 187 (9th Cir. 2021), that when an agreement
    provides that it covers claims involving particular parties,
    that agreement has been made expressly for the benefit of
    NGO V. BMW OF NORTH AMERICA                     9
    those parties. The memorandum disposition in Hajibekyan,
    however, is not binding precedent and, in any event, does not
    help BMW. There, the arbitration clause defined arbitrable
    disputes as those between “me and you or your employees,
    officers, directors, affiliates, successors, or assigns,” and
    defined “you” and “your” to include the assignee of the
    contract. Id. at 188 (emphasis added). BMW was an affiliate
    of the assignee in Hajibekyan. Id. Here, arbitrable disputes
    do not include those involving BMW Bank of North
    America’s assignees and affiliates, only those involving the
    dealership’s assignees.
    That BMW could, at some point down the line, receive
    some benefit if the arbitration clause were read to extend to
    the manufacturer is of no moment: incidental or secondary
    benefit is not sufficient. See Lucas, 
    56 Cal. 2d at 590
    . The
    clause is pellucid that only three parties may compel
    arbitration, none of which is BMW. Language limiting the
    right to compel arbitration to a specific buyer and a specific
    dealership (and its assignees) means that extraneous third
    parties may not compel arbitration. See Kramer v. Toyota
    Motor Corp., 
    705 F.3d 1122
    , 1128 (9th Cir. 2013) (finding
    similar language to evince the buyer’s intent to arbitrate with
    the expressly named parties and no one else); see also Safley
    v. BMW of N. Am., LLC, No. 20-cv-00366-BAS-MDD, 
    2021 WL 409722
    , at *5–6 (S.D. Cal. Feb. 5, 2021); Qi Ling Guan
    v. BMW of N. Am., LLC, No. 20-cv-05025-MMC, 
    2021 WL 148202
    , at *2 (N.D. Cal. Jan. 15, 2021); Manuwal v. BMW
    of N. Am., LLC, No. CV 20-2331 DSF, 
    484 F. Supp. 3d 862
    ,
    868 (C.D. Cal. 2020). Any benefit that BMW might receive
    from the clause is peripheral and indirect because it is
    predicated on the decisions of others to arbitrate. BMW
    therefore fails to meet the first prong of the Goonewardene
    test.
    10           NGO V. BMW OF NORTH AMERICA
    Second, the contracting parties must have had a
    “motivating purpose” of providing a benefit to the third
    party. Goonewardene, 
    6 Cal. 5th at 830
    . The phrase
    “motivating purpose” was intended to “clarify that the
    contracting parties must have a motivating purpose to benefit
    the third party, and not simply knowledge that a benefit to
    the third party may follow from the contract.” 
    Id.
     BMW has
    failed to demonstrate this requisite “motivating purpose.”
    Our cases illustrate why this is so. In Lucas, persons to
    be named in a will were third-party beneficiaries to a
    contract between a will’s draftsman and a testator. See
    
    56 Cal. 2d at 590
    . In Northstar Financial Advisors, Inc. v.
    Schwab Investments, shareholders in a mutual fund were
    third-party beneficiaries to a contract between a trust and an
    investment advisor for the management of that mutual fund.
    
    779 F.3d 1036
    , 1064 (9th Cir. 2015) (noting that the purpose
    of the contract was “to manage and operate the Fund in
    accordance with the fundamental investment objectives that
    the shareholders had adopted”). And in Spinks v. Equity
    Residential Briarwood Apartments, an employee was the
    third-party beneficiary to a contract to provide housing for
    that employee between an employer and a landlord. 
    171 Cal. App. 4th 1004
    , 1031 (Cal. Ct. App. 2009).
    Unlike agreements to draft wills or to manage trusts or
    mutual funds—arrangements inherently formed with third
    parties in mind—the vehicle purchase agreement in question
    was drafted with the primary purpose of securing benefits
    for the contracting parties themselves. In such an agreement,
    the purchaser seeks to buy a car, and the dealership and
    assignees seek to profit by selling and financing the car.
    Third parties are not purposeful beneficiaries of such an
    undertaking.
    NGO V. BMW OF NORTH AMERICA                      11
    The text of the arbitration clause supports this
    conclusion. It provides that claims and disputes “which
    arise[] out of or relate[] 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.” (emphasis added). Though the language allows
    for arbitration of certain claims concerning third parties, it
    still gives only Ngo, the dealership, and the assignee the
    power to compel arbitration. Nothing in the clause or, for
    that matter, in the purchase agreement reflects any intention
    to benefit BMW by allowing it to take advantage of the
    arbitration provision.
    Third, permitting the third party to enforce the contract
    must be consistent with the “objectives of the contract” and
    the “reasonable expectations of the contracting parties.”
    Goonewardene, 
    6 Cal. 5th at 830
    . To make this
    determination, we focus on “the language of the contract and
    all of the relevant circumstances under which the contract
    was entered into” to determine if “third party enforcement
    will effectuate the contracting parties’ performance
    objectives, namely those objectives of the enterprise
    embodied in the contract, read in light of surrounding
    circumstances.” 
    Id.
     at 830–31 (cleaned up).
    Nothing in the contract here evinces any intention that
    the arbitration clause should apply to BMW. The arbitration
    clause’s enforcement provisions are limited to the
    dealership, the assignee, and Ngo. The compelling inference
    from this arrangement is that the parties knew how to give
    enforcement powers to non-signatories when they wished to
    do so but gave none to BMW. Indeed, the fact that the
    purchase agreement provides that it “does not affect any
    12           NGO V. BMW OF NORTH AMERICA
    warranties covering the vehicle that the vehicle
    manufacturer may provide,” is a potent indication that the
    parties knew how to deal with claims against the
    manufacturer.
    Although the arbitration clause may have extended to
    claims regarding the purchase of the vehicle, it does not
    follow that additional parties can enforce the arbitration
    clause. In so concluding, the district court “confuse[d] the
    nature of the claims covered by the arbitration clause with
    the question of who can compel arbitration.” White v.
    Sunoco, Inc., 
    870 F.3d 257
    , 267 (3d Cir. 2017).
    Nor is our conclusion disturbed by the fact that BMW
    was neither a stranger to the transaction nor “some random
    third party,” as the district court put it. To the contrary,
    BMW’s relative proximity to the contract confirms that the
    parties easily could have indicated that the contract was
    intended to benefit BMW—but did not do so. See Murphy v.
    Directv, Inc., 724 F.3d at 1218, 1234 (9th Cir. 2013) (noting
    that a signatory that named an entity other than the one
    seeking arbitration as a third-party beneficiary “clearly knew
    how to provide for a third-party beneficiary if it wished to
    do so”).
    III.
    We also reject BMW’s contention that equitable estoppel
    allows it to compel arbitration. California law permits non-
    signatories to invoke arbitration agreements under the
    doctrine of equitable estoppel only in limited circumstances.
    Henson v. United States Dist. of N. Cal., 
    869 F.3d 1052
    ,
    1060 (9th Cir. 2017). The two circumstances are:
    (1) when a signatory must rely on the terms of
    the written agreement in asserting its claims
    NGO V. BMW OF NORTH AMERICA                    13
    against the nonsignatory or the claims are
    intimately founded in and intertwined with
    the underlying contract, and
    (2) when the signatory alleges substantially
    interdependent and concerted misconduct by
    the nonsignatory and another signatory and
    the allegations of interdependent misconduct
    are founded in or intimately connected with
    the obligations of the underlying agreement.
    Kramer, 705 F.3d at 1128–29 (cleaned up). Equitable
    estoppel thus prevents a plaintiff from having it “both ways”
    by seeking to hold a non-signatory liable for obligations
    “imposed by [an] agreement,” while at the same time
    “repudiating the arbitration clause of that very agreement.”
    Goldman v. KPMG LLP, 
    173 Cal. App. 4th 209
    , 220, 231
    (Cal. Ct. App. 2009).
    Ngo did not allege any “concerted misconduct” between
    the other signatory (the dealership) and either of the parties,
    so the second basis for equitable estoppel does not apply.
    Kramer, 705 F.3d at 1128. That leaves only the first basis,
    which requires that Ngo either “rely on the terms of” the
    purchase agreement or make claims that are “intimately
    founded in and intertwined with” it. Id.
    BMW argues that the “inextricably bound up” test is
    satisfied for three reasons. First, “the express and implied
    warranties provided by BMW NA are the additional terms
    of the purchase agreement that contains the arbitration
    proviso.” Second, BMW argues that Ngo’s claims “depend
    on, arise out of, and are inextricably intertwined with the
    purchase agreement.” Third, BMW suggests that “the
    purchase agreement furnishes plaintiff’s standing to sue so
    14           NGO V. BMW OF NORTH AMERICA
    the arbitration clause is critical to her rights.” We are not
    persuaded.
    As an initial matter, under California law, warranties
    from a manufacturer that is not a party to a sales contract are
    “not part of [the] contract of sale.” Corp. of Presiding Bishop
    of Church of Jesus Christ of Latter-Day Saints v.
    Cavanaugh, 
    217 Cal. App. 2d 492
    , 514 (Cal. Ct. App. 1963);
    see also Greenman v. Yuba Power Prods., Inc., 
    59 Cal. 2d 57
    , 63–64 (Cal. 1963). Instead, the express and implied
    warranties arise “independently of a contract of sale.”
    Greenman, 
    59 Cal. 2d at
    60–61; Cavanaugh, 217 Cal. App.
    2d at 514; see also Frost v. LG Elecs Mobilecomm USA, Inc.
    No. D062920, 
    2013 WL 5409906
    , at *6 (Cal. Ct. App. Sept.
    27, 2013) (a manufacturer’s warranties are “independent of
    the purchase agreement”). Moreover, the purchase
    agreement expressly states that it does not disturb any
    warranties provided by BMW.
    BMW is mistaken that, under the Song-Beverley and the
    Magnuson-Moss Warranty Acts, Ngo’s claims are
    inextricably intertwined with terms of the purchase
    agreement. To be sure, Ngo must show that she owned a
    BMW, but ownership does not entail an intention to enforce
    any obligations of the purchase agreement on BMW. BMW
    was not a party to the agreement and its obligations to Ngo
    arose independently of her agreement with the dealership.
    BMW argues that if Ngo had not signed the purchase
    agreement with the dealership, she would not have been able
    to purchase her car; if she had not purchased her car, BMW
    would have issued no warranties; and if BMW had issued no
    warranties, Ngo could not bring statutory claims. But this
    “attenuated chain of reasoning” has been rejected by
    California courts. Nemore v. Renovate Am., Inc.
    No. B294459, 
    2019 WL 6167410
    , at *6 (Cal. Ct. App.
    NGO V. BMW OF NORTH AMERICA                     15
    Nov. 20, 2019). And we rejected similar arguments in
    Kramer. See 705 F.3d at 1131. Like Ngo’s purchase
    agreement, the contracts in Kramer “expressly
    differentiate[d] dealer warranties from manufacturer
    warranties” and disclaimed any effect on the manufacturer’s
    warranties. Id. We held that warranty claims against the
    manufacturer “arise[] independently from the Purchase
    Agreements, rather than intimately relying on them.” Id.
    Lastly, BMW’s standing argument fails. It is the retail
    sale—the fact that Ngo bought a BMW—not the purchase
    agreement, that gives a plaintiff standing to bring claims
    under the Song-Beverly Act. See Islas v. Ford Motor Co.,
    No. EDCV 18-2221-GW(SPx), 
    2019 WL 10855294
    , at *5
    (C.D. Cal. July 29, 2019) (the Act’s definition of the buyers
    covered “does not contain any reference to a contract or any
    contract-based rights” at all). The contract with the
    dealership only “proves . . . the existence” of the retail sale.
    Murphy, 724 F.3d at 1231. Because Ngo’s standing to bring
    these claims against BMW does not derive from the
    purchase agreement, BMW cannot establish that Ngo’s
    claims are “inextricably tied up” with the purchase
    agreement. For these reasons BMW fails to meet the Kramer
    standard.
    BMW alternatively argues that it need not meet the
    Kramer standard because equitable estoppel under
    California law was broadened by a recent decision: Felisilda
    v. FCA US LLC, 
    53 Cal. App. 5th 486
     (2020). We disagree.
    The plaintiffs in Felisilda purchased a used 2011 Dodge
    Grand Caravan from the Elk Grove Dodge dealership and
    signed a purchase agreement containing an arbitration
    provision that was virtually identical to the one Ngo signed.
    See 
    id.
     After discovering “serious defects” with the car, the
    Felisildas sued both the dealership and the manufacturer. 
    Id.
    16           NGO V. BMW OF NORTH AMERICA
    at 491. The dealership moved to compel arbitration. 
    Id. at 489
    . After the manufacturer filed a notice of non-opposition,
    the trial court compelled arbitration. 
    Id. at 491
    . The
    Felisildas then dismissed the dealership and the district court
    ordered it to arbitrate with the manufacturer alone. 
    Id. at 499
    .
    The California Court of Appeal affirmed. 
    Id.
    It makes a critical difference that the Felisildas, unlike
    Ngo, sued the dealership in addition to the manufacturer. In
    Felisilda, it was the dealership—a signatory to the purchase
    agreement—that moved to compel arbitration rather than the
    non-signatory manufacturer. See 
    id. at 489
     (“Relying on the
    retail installment sales contract . . . signed by the Felisildas,
    Elk Grove Dodge moved to compel arbitration.”).
    Furthermore, the Felisildas dismissed the dealership only
    after the court granted the motion to compel arbitration.
    Accordingly, Felisilda does not address the situation we are
    confronted with here, where the non-signatory manufacturer
    attempted to compel arbitration on its own. We therefore
    decline to affirm on the ground of equitable estoppel.
    IV.
    For these reasons, we REVERSE and REMAND for
    proceedings consistent with this opinion.