Motion to Compel Arbitration
Plaintiff offers absolutely no evidence that moving defendant actually resided at the address in La Habra where the documents were left and mailed to. The copy of the guaranty submitted by responding with the opposition does not show an address for moving defendant; it merely gives an address in Chino for notices to the guarantors.
Thus, notwithstanding the declaration of the process server submitted with the proof of service and the declaration of a representative of plaintiff’s property manager submitted with the opposition, plaintiff has not shown that service of the moving defendant was proper and effective and that the Court acquired personal jurisdiction over the moving defendant. The resulting default and default judgment against her are void. 16 26-01538511 Motion to Compel Arbitration
Yazdani vs. Tesla, Inc. The motion of defendant Tesla, Inc. for an order compelling plaintiff Sohrab Yazdani to arbitrate the claims in this matter and staying the court action pending the outcome of the arbitration is GRANTED.
Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate. Herzog v. Superior Court (2024) 101 Cal.App.5th 1280, 1293. This threshold inquiry stems from the basic premise that arbitration is consensual in nature. B.D. v. Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 943. Thus, while California public policy favors arbitration, there is no policy compelling persons to accept arbitration of controversies that they have not agreed to arbitrate. Ibid.
General principles of contract law determine whether the parties have entered into a binding agreement to arbitrate. B.D. v. Blizzard Entertainment, Inc., supra, 76 Cal.App.5th at p. 943. Mutual assent, or consent, of the parties is essential to the existence of a contract and consent is not mutual unless the parties all agree upon the same thing in the same sense. Ibid. Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. Ibid. If an offeree objectively manifests assent to an agreement, the offeree cannot avoid a specific provision of that agreement on the ground the offeree did not actually read it. Ibid.
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These consent principles apply with equal force to arbitration provisions contained in contracts purportedly formed over the Internet. B.D. v. Blizzard Entertainment, Inc., supra, 76 Cal.App.5th at p. 943. While internet commerce has exposed courts to many new situations, it has not fundamentally changed the requirement that mutual manifestation of assent, whether by written or spoken word or by conduct, is the touchstone of contract. Ibid.
In the world of paper contracting, the outward manifestation of assent to the same thing by both parties is often readily established by the offeree's receipt of the physical contract. B.D. v. Blizzard Entertainment,
Inc., supra, 76 Cal.App.5th at pp. 943-944. By contrast, when transactions occur over the internet, there is no face-to-face contact and the consumer is not typically provided a physical copy of the contractual terms. Id. at p. 944. In that context, and in the absence of actual notice, a manifestation of assent may be inferred from the consumer's actions on the website—including, for example, checking boxes and clicking buttons—but any such action must indicate the parties' assent to the same thing, which occurs only when the website puts the consumer on constructive notice of the contractual terms.
Ibid. Thus, to establish mutual assent for the valid formation of an internet contract, a provider must first establish the contractual terms were presented to the consumer in a manner that made it apparent the consumer was assenting to those very terms when checking a box or clicking on a button. Ibid.
Defendant contends that, on or about December 9, 2021, plaintiff placed an order for a 2022 Tesla Model 3 from defendant Tesla. It contends that, in doing so, plaintiff executed an order agreement with it and agreed to be bound by its terms and conditions, including an agreement to arbitrate.
In support of the motion, defendant submits the declaration of Raymond Kim. (ROA 13.) In his declaration, Mr. Kim declares that he is defendant’s Manager for Business Resolutions and is familiar with the service and sales of Tesla vehicles as well as the related record-keeping procedures. Mr. Kim declares that he is submitting a copy of the order agreement that plaintiff executed on-line as Exhibit 1.
The provision for arbitration is on the second page of the agreement. Among other things, it provides that if a concern or dispute by a consumer is not resolved within 60 days’ of written notice of that concern or dispute is given, then the consumer “agree[s] that any dispute arising out of or relating to any aspect of the relationship between [the consumer] and Tesla will not be decided by a judge or jury but instead by a single arbitrator in an arbitration administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules.” It provides that “[t]his includes claims arising before this Agreement, such as claims related to statements about our products.”
Defendant has therefore demonstrated that an agreement to arbitrate exists between the parties and encompasses the claims in the complaint, which relate to the vehicle purchased by plaintiff.
Plaintiff contends that Court should not enforce the arbitration agreement because it is unconscionable. However, contrary to plaintiff’s contention that the agreement is one of adhesion, the agreement specifically provides that a consumer may opt out of the agreement to arbitrate by giving defendant written notice within 30 days of signing the agreement. It also provides that, in lieu of arbitrating, the consumer may take an individual dispute to small claims court.
Additionally, the arbitration agreement provides that defendant will pay the fees for the arbitration and that the arbitration is to be held in the city or county of the consumer’s residence. 17 26-01544858 Motion to Compel Arbitration
Roknian vs. Palmier Defendants’ Motion to Compel Arbitration filed by is GRANTED. Hennessey & Lifer LLP Defendants Palmier Hennessey & Lifer LP (“PHL”), Patrick A. Hennessey, and Anish J. Banker move to compel arbitration and stay, or in the alternative, dismiss Plaintiffs’ action pursuant to California Code of Civil Procedure sections 1281 and 1281.2.
Legal Standard
“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281.)
A party to an arbitration agreement may move to compel arbitration and stay the action if another party to the agreement refuses to arbitrate. (Code Civ. Proc., §§ 1281.2, 1281.4.) The moving party must prove by a preponderance of the evidence (1) the existence of a written agreement to arbitrate; and (2) one or more of the claims at issue are covered by that agreement. (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) If the moving party meets this burden, the burden shifts to the resisting party to prove by a preponderance of evidence a defense to enforcement of the agreement, such as waiver or grounds for revocation. (Code Civ.
Proc., § 1281.2; Villacreses, supra, 132 Cal.App.4th at p. 1230.) The motion may be filed in lieu of filing an answer to a complaint. (Code Civ. Proc., § 1281.7.) If the motion is denied, the moving defendant has 15 days after any denial of the petition to plead to the complaint. (Ibid.)
Existence of Arbitration Agreement
The court determines the existence of an agreement to arbitrate in a summary process. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164.) The trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Ibid.)
Courts use a “three-step burden-shifting process” to determine whether an agreement to arbitrate exists:
“First, the party petitioning to compel arbitration must state the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference. Signatures on the