FISHER v. DCH TEMECULA IMPORTS LLC
Filed 8/13/10
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
AMBERLEE FISHER,
Plaintiff
and Respondent,
v.
DCH TEMECULA IMPORTS LLC,
Defendant
and Appellant.
E047802
(Super.Ct.No.
RIC505227)
APPEAL from the Superior
Court of Riverside
County. Mac R. Fisher, Judge. Affirmed.
Manning, Leaver, Bruder &
Berberich, Christian J. Scali and Wade R. Kackstetter for Defendant and
Appellant.
Jonathan Morrison for California New
Car Dealers Association as Amicus Curiae on behalf of Defendant and Appellant.
Rosner, Barry & Babbitt, Hallen
D. Rosner and Christopher P. Barry for Plaintiff and Respondent.
Defendant DCH Temecula Imports LLC
(DCH) appeals the denial of its petition to compel arbitration. The trial court found that an arbitration clause in a retail
installment sales contract (RISC) for the sale of a car to plaintiff Amberlee
Fisher, which included a waiver of the right to bring a class action lawsuit or
request classwide arbitration, was unenforceable.
Fisher presented several theories to
the trial court in opposition to the enforcement of the arbitration clause,
including that the arbitration clause required her to waive an unwaivable statutory right to bring a class action
lawsuit under the California Legal Remedies Act (the CLRA) and that the
arbitration agreement was both procedurally and substantively unconscionable.
We uphold the trial court's denial
of the petition to compel arbitration.
I
FACTUAL AND PROCEDURAL BACKGROUND
A.
On July 29, 2008, Fisher filed her complaint for injunctive relief, restitution, rescission,
and damages both on her own behalf and as a class action lawsuit. Fisher defined the class as those who purchased
a vehicle from DCH from July 28, 2003, to then present, and (1) after signing
an RISC, DCH rescinded the original RISC and had the consumer sign a subsequent
RISC for the same vehicle, but the new contract was dated the date of the
original purchase contract and involved financing at an annual percentage rate
greater than 0.00%, and/or (2) who executed an RISC for the purchase of a
vehicle for personal use where registration and licensing fees were not
properly disclosed on a separate line in the contract as required.
As for Fisher's individual claims,
she alleged that in August 2007 she agreed to purchase a used 2004 Dodge Neon
from DCH. She was advised the vehicle
had been through a thorough inspection and was a safe vehicle. It was not disclosed that it had previously
been used as a daily rental vehicle. She
further alleged that her RISC did not separately itemize the license and
registration fees.
According to the allegations in the
complaint, Fisher began having problems with the vehicle. In the meantime, she was contacted by DCH and
informed she had to sign a new RISC.
Fisher refused, but DCH threatened to repossess her vehicle if she did
not. She signed a new RISC, which
provided for a new finance company. The
contract she signed on August 14, 2007,
was backdated to August 7, 2007.
Fisher listed six causes of action
for the class, including violation of the CLRA and Civil Code sections 1750 and
1780, subdivision (a)(2) for backdating contracts; violation of the CLRA and
Civil Code sections 1750, subdivision (a) and 1770, subdivision (a) for
improperly designating license and registration fees; violation of the
Automobile Sales Finance Act (the ASFA) and Civil Code section 2981 for
backdating the second sales contract; violation of the ASFA and Civil Code
section 2981 for improperly designating license and registration fees;
commission of unlawful, unfair, and/or fraudulent business practices and violation of
Business and Professions Code section 17200 for backdating the second sales
contracts; and commission of unlawful, unfair, and/or fraudulent business
practices and violation of Business and Professions Code section 17200 for
failing to properly designate license and registration fees.
Fisher listed four additional
individual causes of action, including negligent misrepresentation of the
condition and inspection of the Neon; intentional misrepresentation of the
condition of the Neon, the terms of the contract, and repossession rights; violation
of the CLRA and Civil Code section 1750 for misrepresentation of the Neon's
condition and inspections; and violation of the Song-Beverly Consumer Warranty
Act and Civil Code section 1790 for delivering a vehicle with serious defects
and nonconformities with warranties.
In her prayer for relief, Fisher
requested, among other amounts, rescission and/or restitution on of all monies
required to be expended by her and the class, plus injunctive relief on the
individual and class claims.
B.
Arbitration
On December 1, 2008, DCH filed its
notice of petition and petition for orders compelling binding contractual
arbitration, severing injunctive relief claims if inarbitrable, staying or
dismissing proceedings pending arbitration, and staying injunctive relief
claims pending arbitration if inarbitrable (petition to compel
arbitration). According to the petition
to compel arbitration, DCH had demanded that Fisher enter into binding arbitration
prior to filing the complaint, but she had refused.
The binding arbitration clause
appeared in a box on the back of the agreement in both the first and second
RISC that Fisher signed. The page on
which it appeared was neither signed nor initialed. In bold letters it stated, â€
| Description | Defendant DCH Temecula Imports LLC (DCH) appeals the denial of its petition to compel arbitration. The trial court found that an arbitration clause in a retail installment sales contract (RISC) for the sale of a car to plaintiff Amberlee Fisher, which included a waiver of the right to bring a class action lawsuit or request classwide arbitration, was unenforceable. Fisher presented several theories to the trial court in opposition to the enforcement of the arbitration clause, including that the arbitration clause required her to waive an unwaivable statutory right to bring a class action lawsuit under the California Legal Remedies Act (the CLRA) and that the arbitration agreement was both procedurally and substantively unconscionable. Court uphold the trial court's denial of the petition to compel arbitration. |
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