MARIA TERESA JUAREZ-RIVERA VS JESUS PLASCENCIA, ET AL.

Tentative Rulings

Case Number: 19STLC10602    Hearing Date: October 20, 2020    Dept: 25

HEARING DATE: Tues., October 20, 2020 JUDGE/DEPT: Blancarte/25

CASE NAME: Juarez-Rivera v. Plascencia, et al. COMPL. FILED: 11-15-19

CASE # 19STLC10602 DISC. C/O: 04-14-21

NOTICE: OK MOT. C/O: 04-29-21

PROCEEDINGS: MOTION TO COMPEL ARBITRATION, PETITION FOR COURT TO PICK ARBITRATION FORUM, REQUEST FOR STAY, AND REQUEST FOR COSTS

MOVING PARTY: Plaintiff Maria Teresa Juarez-Rivera

RESP. PARTY: Defendant Jesus Plascencia dba PM Auto Sales

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2, et seq.)

TENTATIVE RULING:

Plaintiff Maria Teresa Juarez-Rivera’s Motion to Compel Arbitration is GRANTED. The matter is STAYED and is to be Arbitrated before the AAA. Defendant Jesus Plascencia dba PM Auto Sales and Defendant Westlake Services, LLC are to pay any outstanding fees to the AAA to reinstate the case therein. Plaintiff’s request for costs is also GRANTED in the amount of $640.95 to be paid by Defendants Plascencia and Westlake.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on July 14, 2020 [X] Late [ ] None

REPLY: None filed as of October 16, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On November 15, 2019, Plaintiff Maria Teresa Juarez-Rivera (“Plaintiff”) filed a Complaint for violation of the Consumers Legal Remedies Act, violation of California Business and Professions Code section 17200, negligent misrepresentation, violation of Civil Code section 1632, and claim against surety against Defendants Jesus Plascencia dba PM Auto Sales (“Plascencia”), Westlake Services, LLC dba Westlake Financial Services (“Westlake”), and Hudson Insurance Company (“Hudson”). On January 3, 2020, Defendant Hudson filed an Answer and on January 8, 2020, Defendant Plascencia filed an Answer.

On January 2, 2020, Plaintiff filed the instant Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, and Request for Costs (the “Motion”), which was originally set for hearing for March 12, 2020. The hearing was continued to May 4, 2020 and again to July 14, 2020 at 8:30 a.m. (4/17/20 Notice re Continuance of Hearing and Order.) The Court ordered Plaintiff to give notice of the continuance to all parties by mail and to file a proof of service demonstrating it gave such notice. (Id.)

At the initial hearing on July 14, 2020, the Court noted it was inclined to grant Plaintiff’s Motion but did not do so because Plaintiff did not file a proof of service demonstrating Defendants were given notice of the continuance. (7/14/20 Minute Order.) That same day, Defendant filed an Opposition to the Motion. No reply brief has been filed.

1. Legal Standard

“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) [t]he right to compel arbitration has been waived by the petitioner; or (b) [g]rounds exist for the revocation of the agreement.” (Code Civ. Proc., §§1281.2, subds. (a)-(b).) As with other types of agreements, “[t]he failure of the [party] to carefully read the agreement and the amendment is not a reason to refuse to enforce the arbitration provisions.” (Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1115.) “California law, ‘like [federal law], reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims.’” (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 31.) If the court orders arbitration, then the court shall stay the action until arbitration is completed. (See Code Civ. Proc., § 1281.4.)

1. Discussion

Plaintiff brings the instant Motion seeking to Compel Defendants Plascencia and Westlake to submit to arbitration based on a Conditional Sale Contract and Security Agreement (the “Agreement”). (Mot., Heydari Decl., ¶ 3, Exh. 1.) Plaintiff purchased a vehicle from Defendant Plascencia pursuant to the Agreement, which was financed by Defendant Westlake. (Id.) The Agreement contains an arbitration provision which states, in pertinent part:

“EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN YOU AND US DECIDED BY ARBITRATION, AND NOT BY A COURT OR BY JURY TRIAL…You or we (including any assignee) may elect to resolve any Claim by neutral, binding arbitration and not by a court action. ‘Claim’ means any claim, dispute, or controversy between you and us or our employees, agents, successors, assigns, or affiliates arising from or relating to…3. The condition of the property…To the extent allowed by law, the validity, scope, and interpretation of this arbitration provision are to be decided by neutral, binding arbitration. If either party elects to resolve a Claim through arbitration, you and we agree that no trial by jury or other judicial proceedings will take place…”

(Compl., Exh. 1.) (Emphasis added.) The Agreement also provides that any party electing arbitration may choose the American Arbitration Association, JAMS, or the National Arbitration and Mediation (NAMI) to handle the claim. (Id.)

Plaintiff’s Complaint arises from the condition of the vehicle, so it is subject to arbitration. (See Compl., ¶¶ 17-21.) Plaintiff sent Defendants a letter demanding arbitration on March 5, 2019. (Mot., Heydari Decl., ¶ 4, Exh. 2.) In opposition, Defendant Plascencia argues that the Agreement is unconscionable. (Oppo., pp. 7:23-8:23.) “Both procedural and substantive unconscionability must be shown for the defense to be established, but ‘they need not be present in the same degree.’ [Citation.] ‘[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to’ conclude that the term is unenforceable. [Citation.] Conversely, the more deceptive or coercive the bargaining tactics employed, the less substantive fairness is required. [Citations.]…The burden of proving unconscionability rests on the party asserting it. [Citations.] (OTO, LLC v. Kho (2019) 8 Cal.5th 111, 125-26.)

“Procedural unconscionability pertains to the making of the agreement; it focuses on the oppression that arises from unequal bargaining power and the surprise to the weaker party that results from the hidden terms or the lack of informed choice. [Citations.]” (Ajmian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771, 795.) (Italics added.) “A procedural unconscionability analysis ‘begins with an inquiry into whether the contract is one of adhesion” which is a “standardized [contract], generally on a preprinted form, and offered by the party with superior bargaining power ‘on a take-it-or-leave-it basis.’ [Citations.]” (OTO, LLC v. Kho, supra, 8 Cal.5th at p 126.) (Italics added.) “Substantive unconscionability examines the fairness of a contract’s terms. This analysis ‘ensures that contracts, particularly contracts of adhesion, do not impose terms that have been variously described as ‘overly harsh’ [citation], ‘unduly oppressive’ [citation], ‘so one-sided as to ‘shock the conscience’’ [citation], or ‘unfairly one-sided.’” (Id. at p. 129-30.) “All of these formulations point to the central idea that the unconscionability doctrine is concerned not with ‘a simple old-fashioned bad bargain’ [citation], but with terms that are ‘unreasonably favorable to the more powerful party.’ [Citation.]” (Id.)

Here, Defendant Plascencia is not the party with unequal bargaining power or the weaker party. Indeed, it was Defendant Plascencia who drafted the Agreement in connection with the automobile sale and provided it to Plaintiff (See Compl., Exh. 1), so it cannot now argue that it was surprised by the arbitration provision or that it lacked the opportunity to make an informed choice. Thus, the Court finds no procedural unconscionability. Because Defendant Plascencia has not demonstrated both procedural and substantive unconscionability exist, his unconscionability defense fails. Instead, the Court finds that Plaintiff has demonstrated the existence of a valid arbitration agreement between the parties and that the Court’s intervention is needed to enforce the arbitration provision.

Plaintiff also argues she is entitled to costs incurred as a result of bringing this Motion pursuant to Code of Civil Procedure section 1293.2. (Mot., pp. 6-7.) “The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.” (Code Civ. Proc., § 1293.2.) “A petition to compel arbitration under section 1281.2 is a judicial proceeding covered by this provision.” (Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 805.) Therefore, Plaintiff is awarded costs of $640.95. (9/21/20 Supp. Heydari Decl., ¶¶ 3-9, Exhs. 1-6.)

1. Conclusion & Order

For the foregoing reasons, Plaintiff Maria Teresa Juarez-Rivera’s Motion to Compel Arbitration is GRANTED. The matter is STAYED and is to be Arbitrated before the AAA. Defendant Jesus Plascencia dba PM Auto Sales and Defendant Westlake Services, LLC are to pay any outstanding fees to the AAA to reinstate the case therein. Plaintiff’s request for costs is also GRANTED in the amount of $640.95 to be paid by Defendants Plascencia and Westlake.

Moving party is ordered to give notice.

Case Number: 19STLC10602    Hearing Date: July 14, 2020    Dept: 25

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2, et seq.)

TENTATIVE RULING:

Plaintiff Maria Teresa Juarez-Rivera’s Motion to Compel Arbitration is CONTINUED TO OCTOBER 6, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of July 10, 2020 [ ] Late [X] None

REPLY: None filed as of July 10, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On November 15, 2019, Plaintiff Maria Teresa Juarez-Rivera (“Plaintiff”) filed a Complaint for violation of the Consumers Legal Remedies Act, violation of California Business and Professions Code section 17200, negligent misrepresentation, violation of Civil Code section 1632, and claim against surety against Defendants Jesus Plascencia dba PM Auto Sales (“Plascencia”), Westlake Services, LLC dba Westlake Financial Services (“Westlake”), and Hudson Insurance Company (“Hudson”). On January 3, 2020, Hudson filed an Answer and on January 8, 2020, Plascencia filed an Answer.

On January 2, 2020, Plaintiff filed the instant Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, and Request for Costs (the “Motion”), which was originally set for hearing for March 12, 2020. The hearing was continued to May 4, 2020 and again to July 14, 2020 at 8:30 a.m. (4/17/20 Notice re Continuance of Hearing and Order.) The Court ordered Plaintiff to give notice of the continuance to all parties by mail and to file a proof of service demonstrating it gave such notice. (Id.)

To date, Plaintiff has not filed any proofs of service for the continuance and Defendants have not filed an Opposition to the Motion.

1. Legal Standard

“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) [t]he right to compel arbitration has been waived by the petitioner; or (b) [g]rounds exist for the revocation of the agreement.” (Code Civ. Proc., §§1281.2, subds. (a)-(b).) As with other types of agreements, “[t]he failure of the [party] to carefully read the agreement and the amendment is not a reason to refuse to enforce the arbitration provisions.” (Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1115.) “California law, ‘like [federal law], reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims.’” (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 31.) If the court orders arbitration, then the court shall stay the action until arbitration is completed. (See Code Civ. Proc., § 1281.4.)

1. Discussion

Plaintiff brings the instant Motion seeking to Compel Defendants Plascencia and Westlake to submit to arbitration based on a Conditional Sale Contract and Security Agreement (the “Agreement”). (Mot., Heydari Decl., ¶ 3, Exh. 1.) Plaintiff purchased a vehicle from Defendant Plascencia pursuant to the Agreement, which was financed by Defendant Westlake. (Id.) The Agreement contains an arbitration provision stating that either party may elect to resolve any claim relating to the credit application, the condition of the vehicle, purchase of the vehicle, the contract, and any related transaction, occurrence, or relationship by neutral and binding arbitration instead of court action. (Id.) Here, Plaintiff’s Complaint arises from the condition of the vehicle, so it is subject to arbitration. (See Compl., ¶¶ 17-21.) Notably, neither Defendant Plascencia nor Defendant Westlake have filed an opposition to this Motion. Thus, Plaintiff has demonstrated the existence of an arbitration agreement between the parties and the Court finds that there is no defense to its enforcement.

Although the Court is inclined to grant this Motion, Plaintiff did not file a proof of service for the April 17, 2020 continuance as ordered by the Court. Thus, it is unclear to the Court whether all parties had actual notice of the continuance.

In addition, Plaintiff argues she is entitled to costs incurred as a result of bringing this Motion pursuant to Code of Civil Procedure section 1293.2. (Mot., pp. 6-7.) “The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.” (Code Civ. Proc., § 1293.2.) “A petition to compel arbitration under section 1281.2 is a judicial proceeding covered by this provision.” (Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 805.) While the Court agrees Plaintiff is entitled to costs, Plaintiff’s counsel did not provide a declaration detailing the costs incurred in bringing the Motion. Thus, the Court cannot determine the proper amount of costs to award at this time. Plaintiff’s counsel is ordered to submit a supplemental declaration providing this information.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Maria Teresa Juarez-Rivera’s Motion to Compel Arbitration is CONTINUED TO OCTOBER 6, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.