Court of Appeal (Cal.) Disagrees with Trial Jury’s Determination that RISC Was Not Negotiated Primarily in the Spanish Language Under Civil Code 1632

In Esparza v. Joe MacPherson Ford, 2017 WL 1534664, at *5–6 (Cal.App. 4 Dist., 2017), in an unpublished decision, the Court of Appeal disagreed with the jury’s determination that a RISC was not negotiated primarily in the Spanish language, and held that the trial court should have granted a JNOV.

There is nothing in the language of section 1632 which is ambiguous, and nothing in it provides for an exception if the customer speaks both Spanish and English. Moreover, the parties have not cited us to any authority which would support such an exception and we have found none. Therefore, we need go no further in considering the question. We conclude section 1632 means what is says—if the contract is negotiated primarily in Spanish then a Spanish translation must be provided.  This brings us to the second question. Is there sufficient evidence to support the court’s agreement with the jury’s implied finding that the RISC was not negotiated primarily in Spanish? This is a factual question which we review under the substantial evidence standard. (Carter, supra, 122 Cal.App.4th at p. 1320.)  The undisputed portions of the evidence set out above show the RISC was negotiated primarily in Spanish. All of the material terms of the RISC were negotiated between plaintiff and Gonzalez in Spanish. Those terms included the purchase price, the down payment, the interest rate and term of the loan, the taxes and fees, and the balance due. Those terms were memorialized in the Sales Menu signed by plaintiff on the showroom floor, before he went into the finance office and met Ghafarshad.  The only material term which changed after plaintiff went into the finance office was the interest rate, and that was the result of the phone call from the lender, not any negotiation between plaintiff and Ghafarshad in English. That Ghafarshad also tried to sell plaintiff various aftermarket products is immaterial. Plaintiff didn’t purchase any of them. So Ghafarshad simply, “did the final paperwork” that reflected the agreement which had been negotiated between plaintiff and Gonzalez in Spanish.  Defendant contends there is “a plethora of evidence” which supports the jury’s verdict on the section 1632 claim, and he gives three specific examples. We are not persuaded. Defendant first notes, “Esparza did not need a Spanish interpreter at trial, and he appeared to have no issue understanding all of the Court proceedings in English.” This evidence is irrelevant under our interpretation of section 1632 above.  Second defendant claims, “with the exception of the sale price, Esparza admitted that the contract he signed was negotiated only in English with … Ghafarshad.” Defendant provided us no citation to the record which supports this claim, and our independent review of the record revealed no evidence of any such admission.  Third defendant argues, “the testimony of … Ghafarshad proves that he and Esparza discussed all aspects of the sales transaction other than the purchase price entirely in English.” We disagree. Ghafarshad only testified it is his job to, “go over all the numbers … , and everything to make sure it is correct.” He did not testify he ever actually did so with plaintiff.  But even if Ghafarshad and plaintiff had discussed all aspects of the sales transaction other than the purchase price entirely in English, it would make no difference. Ghafarshad testified that before he meets with a purchaser, the Sales Menu is signed, and “the deal is in place.” And Ghafarshad admitted he did not negotiate the price, the down payment, or the number of months on the loan with plaintiff. We find ourselves in agreement with Ghafarshad; the deal was in place before he met plaintiff.  In sum, substantial evidence does not support the jury’s implied finding the RISC was not negotiated primarily in Spanish. On this record, plaintiff’s motion for a directed verdict on his claim under section 1632 should have been granted and, as a result, his motion for a JNOV on that claim should have been granted too. (Code. Civ. Proc. § 629; Carter, supra, 122 Cal.App.4th at p. 1320.) For all of these reasons, the judgment on the general verdict in favor of defendant must be reversed.    In light of the court’s expressed concern about the remedies that flow from reversal on this ground we will provide further direction. Subdivision (k) of section 1632 states: “(k) Upon a failure to comply with the provisions of this section, the person aggrieved may rescind the contract or agreement in the manner provided by this chapter. If the contract for a consumer credit sale or consumer lease that has been sold and assigned to a financial institution is rescinded pursuant to this subdivision, the consumer shall make restitution to and have restitution made by the person with whom he or she made the contract, and shall give notice of rescission to the assignee. Notwithstanding that the contract was assigned without recourse, the assignment shall be deemed rescinded and the assignor shall promptly repurchase the contract from the assignee.”   Subdivision (k) of section 1632 surely provides plaintiff the right to rescind the RISC and the loan agreement. However, that rescission necessarily raises restitution questions which were not addressed below and, contrary to plaintiff’s assertion, we cannot resolve those questions as a matter of law on appeal. Instead, we will direct the trial court to address them in the first instance on remand.