unconscionability

In Castellanos v. Quality Nissan, Inc., 2013 WL 6234205 (Cal. App. 4 Dist. 2013), the Fourth District Court of Appeal, Division Three in an unpublished decision found the standard form RISC arbitration clause to be unconscionable, and affirmed the trial court’s denial of the dealership’s petition to compel arbitration.  The Court of Appeal mentioned, in particular, the issue with the appellate procedure… Read More

In Gonzalez v. Metro Nissan of Redlands, 2013 WL 4858770 (Cal.App. 4 Dist. 2013), an unpublished decision, the Court of Appeal entered the Sanchez fray, and came down on the side of enforcing the arbitration clause in the LawPrinting RISC.   "Because we have no guidance from the Supreme Court, and because we cannot rely on the decisions of our sister courts,… Read More

In Vargas v. Sai Monrovia B, Inc., --- Cal.Rptr.3d ----, 2013 WL 2419044 (Cal.App. 2 Dist. 2013), the same panel that decided Sanchez v. Valencia Holding Co., LLC (2011) 201 Cal.App.4th 74, re-examined the enforceability of the arbitration clause in the standard California car purchase contract and held that its prior decision was correct.  The Court held that the clause… Read More

In Trabert v. Consumer Portfolio Services, 2013 WL 1403084 (2013), Division 1 of the Fourth District Court of Appeal, in an unpublished decision, found the Arbitration Clause in a standard form RISC to be procedurally and substantively unconscionable, but remanded the matter to the trial court to determine whether those provisions could be severed. In sum, we have determined that… Read More

In Vasquez v. Greene Motors, Inc., --- Cal.Rptr.3d ----, 2013 WL 1232343 (Cal.App. 1 Dist., 2013), the Court of Appeal found the arbitration clause in the standard form automobile RISC to be procedurally and substantively unconscionable. After plaintiff Gustavo E. Vasquez purchased a used car on credit from defendant Greene Motors, Inc. (Greene), the vehicle's financing was assigned to defendant… Read More

In Cayanan v. Citi Holdings, Inc., 2013 WL 784662 (S.D.Cal. 2013), Judge Anello ordered TCPA class actions to arbitration finding that the Arbitration clause in loan agreements were not both procedurally and substantively unconscionable and that the TCPA claims fell within the language of the arbitration agreements. Plaintiffs Elsie Cayanan, Kimberly Baker, and Jesse McKay filed a putative class action… Read More

In Natalini v. Import Motors, Inc. (2013) 2013 DAR 1673, the Court of Appeal followed the reasoning similar to Sanchez v. Valencia Holding Co., holding that the arbitration clause in the standard Law Printing car contract is unconscionable and unenforceable due to the $100,000 and injunction triggers to three arbitrator review and the reservation of self-help remedies including repossession. Read More

In Flores v. West Covino Auto Group, 2013 WL 139200 (2013), the Court of Appeal for the Second District found that the Defendant auto dealer did not waive arbitration by litigating the case while Fisher remained good law and until shortly after Concepcion was decided.  The dealer's delay in seeking arbitration was justified and the car buyer did not show… Read More

In Natalani v. Import Motors, Inc., 2013 WL 64611 (Cal.App. 1 Dist. 2013), the First District Court of Appeal found in an unpublished decision that the arbitration clause in a standard-form automobile RISC to be procedurally and substantively unconscionable, thus affirming the trial court's denial of the dealer's petition to arbitrate. Appellant contends that Concepcion broadly restricts the application of the… Read More

In Norton v. Ford of Santa Monica et al., 2012 WL 6721400 (Cal.App. 2 Dist. 2012), the Court of Appeal for the Second District, found in an unpublished decision that an automobile RISC's arbitration was procedurally and substantively unconscionable. As to procedural unconscionability, the Court of Appeal found: The vehicle purchase contract contains elements of surprise. Placement of the arbitration agreement… Read More

In McNamara v. Royal Bank of Scotland Group, PLC, 2012 WL 5392181 (S.D.Cal. 2012), Judge Lorenz called out a now-frequently employed tactic by Plaintiff’s counsel, who litigate individual collection torts in state court to be able argue waiver of the arbitration clause in a later-filed class action in federal court.  Judge Lorenz ordered a TCPA class action to arbitration, finding… Read More

In Sherf v. Rusnak/Westlake et al., 2012 WL 4882547 (Cal.App. 2 Dist. 2012), the Court of Appeal in an unpublished decision, followed a similar analysis to the Caron decision, finding the class action waiver and arbitration clause in an automobile RISC enforceable, but remanding to the trial court for a determination of unconscionability.  Sherf had signed a typical RISC for the… Read More

In Goodrich v. KDF Automotive, here, the Court of Appeal for the Fourth District found an arbitration clause in a standard form RISC unconscionable, for largely the same reasons as the Sanchez case currently pending before the California Supreme Court. Read More

In Goodridge v. KDF Automotive Group, Inc., 2012 WL 3635279 (Cal.App. 4 Dist. 2012), the Court of Appeal in an unpublished decision adopted the Sanchez analysis lock-stock-and-barrel, declining to order an automobile case to arbitration due to the ‘unconscionable’ arbitration clause in the RISC. Unconscionability. Applying a sliding scale for procedural and substantive unconscionability, we conclude the Contract's arbitration clause… Read More

In Cisneros v. American General Financial Services, Inc. 2012 WL 3025913 (N.D.Cal. 2012), Judge Breyer found an arbitration clause in a contract educational services sold door-to-door was procedurally and substantively unconscionable. Plaintiff Lucresia Cisneros (“Plaintiff”) contends that Defendants American General Financial Services, Inc., Hispanic Educational, Inc., and Logic's Consulting, Inc., engaged in a door-to-door scheme selling personal computers and software… Read More

In Caron v. Mercedes–Benz Financial Services USA LLC --- Cal.Rptr.3d ----, 2012 WL 2579662 (Cal.App. 4 Dist. 2012), the Fourth District Court of Appeal found that the dealer and finance company adequately authenticated the sales contract in moving to compel arbitration.   Defendants attached both pages to their motion, and the first page matched the one plaintiff had attached her complaint,… Read More

In Trompeter v. Ally Financial, Inc., 2012 WL 1980894 (N.D.Cal. 2012), Judge Wilken found the LawPrinting RISC Arbitration procedurally substantively unconscionable, denied the petition to arbitrate, and refused the stay the case pending the outcome of the California Supreme Court’s decision in Sanchez.   The Plaintiff,  John Trompeter, had filed a putative class action against Defendant Ally Financial, Inc., alleging that… Read More

In Knutson v. Sirius XM Radio Inc., 2012 WL 1965337 (S.D.Cal. 2012), Judge Battaglia ordered a TCPA claim to arbitration, notwithstanding the consumer’s argument that arbitration would not afford him the ability to vindicate his TCPA rights as he would like. Judge Battaglia rejected the claim and ordered the matter to arbitration. Plaintiff asserts that if he is ordered to… Read More

In Beard v. Santander Consumer USA, Inc.,  2012 WL 1292576 (E.D.Cal. 2012), Judge McAuliffe enforced an arbitration clause against a servicemember who filed a class action against an automobile finance company arising from its predecessor’s repossession of the servicemember’s vehicle. In the underlying action, Beard brings a putative class action against Defendants alleging violations of the Servicemembers Civil Relief Act,… Read More

The Legislation is quite simple, purporting to amend Civil Code section 1589.5 as follows: (a) Any term in a contract of adhesion purporting to waive the right to join or consolidate claims, or to bring a claim as a representative member of a class or in a private attorney general capacity shall be deemed to lack the necessary consent to… Read More