Daneshmand v. Tareen

Plaintiff argues that the Agreement is unenforceable, as it is unconscionable. To show that the Agreement is unenforceable due to unconscionability, Plaintiff must show both procedural and substantive unconscionability, although both elements need not be present in the same degree. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 242; Gatton v. T–Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579.) Here, even if there is some procedural unconscionability based on the adhesive nature of the Agreement, it is a separate document clearly labeled as an arbitration agreement and it expressly includes an opt-out provision. (Stock Decl., Ex. B, ¶ 7.) There is thus only a minimal showing of procedural unconscionability here. Plaintiff therefore must show a high degree of substantive unconscionability to prevail on his argument.

Plaintiff argues that there is a lack of mutuality, as the Agreement would effectively apply only to claims that would be made by a buyer, while FCA is not even a signator. But a writing memorializing an arbitration agreement need not be signed by both parties to be binding: it is the presence or absence of evidence of an agreement to arbitrate which matters. (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 176.) Here, the Agreement states that both Plaintiff and FCA are to be bound, and the Agreement was presented to Plaintiff by what was evidently an authorized FCA dealer acting on FCA’s behalf.

FCA thus is also bound thereto. Plaintiff also argues that the Agreement lacks consideration. But a mutual promise to arbitrate itself reflects consideration. (Garner v. Inter-State Oil Co. (2020) 52 Cal.App.5th 619, 625.) Plaintiff has thus failed to show unconscionability sufficient to prevent enforcement here.

The Motion is therefore GRANTED.

Plaintiff’s Evidentiary Objections are OVERRULED.

Counsel for FCA is to give notice of this ruling. 2 Jimenez v. Cont. to 10/5 Betitto’s Tow and and Service Center, Inc. 3 Daneshmand Cont. to 10/5 v. Tareen 4 Joseph v. Bell Before the Court is a motion for undertaking filed by defendants David Bell, DDS, M.D, David Bell, MD, Inc. and Orthognathic Surgery, M.D. (Defendants) against plaintiff Daniel Joseph (Plaintiff.) For the reasons set forth below, the motion is DENIED.

Pursuant to Code of Civil Procedure section 1030, when the plaintiff resides out of the state, the defendant may file a motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and recoverable attorney’s fees which may be awarded in the action. (Code Civ. Proc., § 1030, subd. (a).) The motion must be supported by points and authorities and affidavits showing: (1) plaintiff's nonresidency; (2) a “reasonable possibility” defendant will