Kemp

I

In July 1993, Maury Page Kemp, a former Palm Springs Nissan dealer, sued the Nissan Motor Corporation in U.S.A. for breach of contract because Nissan would not approve the sale of his dealership to a third party. In June 1994, i.e., prior to the decisions of the Court of Appeal in Miller v. Superior Court (1996) 50 Cal.App.4th 1665 [ 58 Cal.Rptr.2d 584 ] and Hardin Oldsmobile v. New Motor Vehicle Bd. (1997) 52 Cal.App.4th 585 [ 60 Cal.Rptr.2d 583 ], the trial court granted summary judgment to Nissan because Kemp, by not taking his breach of contract claim to the New Motor Vehicle Board, had not exhausted his administrative remedies. Kemp appealed. Prior to oral argument we invited the parties to submit supplemental briefing on Miller and Hardin Oldsmobile . In this opinion we now explain why Nissan’s proffered reasons for distinguishing Miller and Hardin Oldsmobile lack persuasive merit, and why Kemp’s breach of contract action is not subject to an exhaustion requirement.

A

There are two ostensible differences between this case and the Miller and Hardin Oldsmobile cases. First, both Miller and Hardin Oldsmobile arose out of unfair allocation claims made against an…