NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TY ELLINGTON, Nos. 21-55021; 21-55022
Plaintiff-Appellee, D.C. No. 20CV800-JWH-SP
v.
MEMORANDUM*
ECLIPSE RECREATIONAL VEHICLES,
Defendant-Appellant,
LIPPERT COMPONENTS, INC,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John W. Holcomb, District Judge, Presiding
Argued and Submitted November 16, 2021
Pasadena, California
Before: WARDLAW, PARKER, ** and HURWITZ, Circuit Judges.
In 2015, Ty Ellington purchased a trailer from a dealership, Giant RV.
Eclipse Recreational Vehicles manufactured the trailer using a frame component
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for
the Second Circuit, sitting by designation.
supplied by Lippert Components, Inc. To complete the transaction, Ellington and
Giant RV executed a purchase agreement that included an arbitration provision.1
Neither Eclipse nor Lippert was a signatory to the purchase agreement.
Four years after his purchase, Ellington discovered cracks in the trailer’s
frame. Ellington sued Eclipse and Lippert. Relying on the arbitration provision in
the purchase agreement between Ellington and Giant RV, Eclipse and Lippert
moved to compel arbitration based on equitable estoppel. The district court denied
1
The arbitration provision provides, in pertinent part:
1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE
BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY
JURY TRIAL.
2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE UP YOUR RIGHT TO
PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON
ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY
RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF
INDIVIDUAL ARBITRATIONS.
3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE
GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER
RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE
AVAILABLE IN ARBITRATION.
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.
2
the motion. We affirm. See Ngo v. BMW of N. Am., LLC, 20-56027 (9th Cir. 2021).
California law permits non-signatory parties to enforce arbitration
agreements pursuant to the doctrine of equitable estoppel in two circumstances:
(1) [W]hen a signatory must rely on the terms of the written agreement in
asserting its claims 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 v. Toyota Motor Corp., 705 F.3d 1122, 1128–29 (9th Cir. 2013) (cleaned
up).2 Here, Ellington has not alleged any “concerted misconduct” between the
other signatory (Giant RV) and Eclipse or Lippert. Id. at 1129. Nor does Ellington
either “rely on the terms of” the purchase agreement or make claims that are
“intimately founded in and intertwined with” it. Id. at 1128. Consequently, neither
basis for equitable estoppel applies. Id. Ellington did not seek to enforce or
challenge any of the purchase agreement’s provisions. His claims do not depend on
the purchase agreements. Instead, they rely only on the fact that he purchased the
trailer. Even if Ellington had no purchase agreement with Giant RV, his implied
2
Eclipse and Lippert argue that Kramer does not provide the governing
standard, and that instead this case is controlled by a recent California Court of
Appeal decision, Felisilda v. FCA US LLC, 53 Cal. App. 5th 486 (Cal. Ct. App.
2020). See Eclipse Opening Br. at 15-23; Lippert Opening Br. at 18-21. For the
reasons set forth in Kim Ngo v. BMW of North America, LLC, we reject that
argument. See Ngo v. BMW, 20-56027, at 16–17.
3
warranty claims against Eclipse and Lippert would remain unchanged.
Accordingly, the district court correctly denied the motion to compel arbitration
because Eclipse and Lippert failed to establish the elements of equitable estoppel.
AFFIRMED.
4
Ty Ellington v. Eclipse Recreational Vehicles
Combined Opinion