Estrella, Sarah vs. Swift Energy Solar, Inc et al

Plaintiff, in opposition to the motion, declares that: 2. I met in person with the solar salesperson Fabrizio Bravo on one occasion in about March 2023 during a home solicitation. All of our communications were in Spanish. I do not speak, read, or write English. On that visit, he had me sign documents on his electronic tablet. He did not give me his tablet to scroll through any documents. He did not go through any documents with me. He did not translate any documents for me. He did not give me copies of any documents.

3. When I signed on Mr. Bravo's tablet, only he and I were present. That was the only time I signed documents for the solar panel system.

4. On that same date, there was a call with someone on Mr. Bravo's telephone. The person on the other end of the line spoke English. Mr. Bravo interpreted for me and told me how to respond.

5. In approximately January 2025, I received copies of the solar contract and the loan. They are both in English. I did not receive any Spanish translations. ...

9. Mr. Bravo did not mention anything to me about arbitration at any time, and I do not know what it is. I did not agree to arbitration...." (Declaration of Plaintiff P.P.2-5, 9.)

Authority and Analysis -Agreement to Arbitrate "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement." (Code Civ. Proc. Sec. 1281.2(a), (b).) (emphasis added.)

Absent a challenge by the nonmoving party, this burden is met by simply providing a copy of the arbitration agreement. (Baker v. Italian Maple Holdings, LLC, 13 Cal. App. 5th 1152, 1160 (2017); Cal. Rules of Court, rule 3.1330.) "For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication." (Condee v. Longwood Management Corp. (2001), 88 Cal.App.4th 215, 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.) However, when the opposing party disputes the agreement, then the opposing party must provide evidence to challenge its authenticity. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.)

Under California law, "[t]he burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence ...." (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-165.)"However, the burden of production may shift in a three-step process." (Id. at 165.) "First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]" (Gamboa, supra, 72 Cal.App.5th at p. 165.) "The moving party 'can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' [Citation.]" (Id. .) "For this step, 'it is not necessary to follow the normal procedures of document authentication.' [Citation.]" (Id.)

Here, this burden is met through Treece's attachment of Exhibits A and B, which contain the arbitration term as well as proof of Plaintiff's electronic signature thereon. The Court agrees that Trecee's declaration is sufficient to authenticate the DocuSign record of completion indicating Plaintiff, via DocuSign, executed the documents.

"If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement." (Gamboa, supra, 72 Cal.App.5th at 165.) "The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement." (Id.)

Here, Plaintiff d oes not dispute that she electronically signed the document containing the arbitration provision. There is no challenge to the DocuSign process or that Plaintiff signed the document electronically as indicated in the DocuSign log. (See Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 687 [stating, "Under the general contract principles just discussed, the fact that [Plaintiff] signed a contract in a language he may not have completely understood would not bar enforcement of the arbitration agreement. If [Plaintiff] did not speak or understand English sufficiently to comprehend the English Contract, he should have had it read or explained to him."].) Plaintiff's declaration admits signing the documents. As such, the Court rejects the first argument in the opposition that Defendants have not met their burden as to the existence of the arbitration agreement.

Authority and Analysis -Civil Code section 1632 Section 1632 provides in relevant part that "[a]ny person engaged in a trade or business who negotiates primarily in Spanish" in certain transactions, "shall deliver to the other party to the contract or agreement and prior to the execution thereof, a translation of the contract or agreement in the language in which the contract or agreement was negotiated, that includes a translation of every term and condition in that contract or agreement." (Civil Code Sec. 1632(b).)

Notwithstanding the translation provided, the "terms of the contract or agreement that is executed in the English language shall determine the rights and obligations of the parties," but the translation "shall be admissible in evidence only to show that no contract was entered into because of a substantial difference in the material terms and conditions of the contract and the translation." (Civil Code Sec. 1632(j).) If a translation is not provided, "the person aggrieved may rescind the contract or agreement." (Civil Code Sec. 1632(k).)

Here, the Agreement itself states "This Arbitration Provision shall survive the full payment of any amounts due under this Note; any rescission or cancellation of this Note..." (Agreement - (j) Survival, Severability, Primacy.) As such, the adjudication of the section 1632 issue in favor of Plaintiff would result in rescission, and would not appear to affect the validity of the arbitration provision, based upon the Court's finding of an agreement to arbitrate above where Plaintiff does not dispute signing the contract.

As such, the Court rejects this argument in the opposition that Defendants have not met their burden as to the existence of the arbitration agreement under section 1632. Defendant has also cast substantial doubt on plaintiff's assertion that she can't understand English by attaching a transcript of the Welcome Call with Solar Mosaic where she speaks fluent English. The transcript does not indicate the call was translated nor does plaintiff ever struggle to respond to a question in English.

Authority and Analysis - Fraud in the Execution Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 688-689 summarizes fraud in the execution as follows: "A contract is void for fraud in the execution where "'"the fraud goes to the inception or execution of the agreement, so that the promisor is deceived as to the nature of his act, and actually does not know what he is signing, or does not intend to enter into a contract at all."'" (Rosenthal, supra, 14 Cal.4th 394, 415.) In this instance, "'"mutual assent is lacking, and [the contract] is void. In such a case it may be disregarded without the necessity of rescission."'" (Ibid.)

In a fraud in the execution case, "California law ... requires that the plaintiff, in failing to acquaint himself or herself with the contents of a written agreement before signing it, not have acted in an objectively unreasonable manner. One party's misrepresentations as to the nature or character of the writing do not negate the other party's apparent manifestation of assent, if the second party had 'reasonable opportunity to know of the character or essential terms of the proposed contract.'" (Id. at p. 423).

Thus, a "party's unreasonable reliance on the other's misrepresentations, resulting in a failure to read a written agreement before signing it, is an insufficient basis, under the doctrine of fraud in the execution, for permitting that party to avoid an arbitration agreement contained in the contract." (Ibid.)" However, in Ramos, the court held "By providing Ramos with a document that purported to be the Spanish translation of the English Contract it was asking him to sign, Pena's Motors implicitly represented to Ramos that it was, in fact, accurate.

Ramos was entitled to rely on this representation. The Ramos Translation was not just inaccurate. Rather, it completely omitted the arbitration agreement that Westlake now seeks to enforce. By providing Ramos a translation that did not even reference arbitration, let alone translate the terms of the arbitration agreement, Pena's Motors "deprived [Ramos] of a reasonable opportunity to learn the character and essential terms of the [arbitration agreement he] signed." (Rosenthal, supra, 14 Cal.4th at p. 428.)" (Id. at 690)

Here, by contrast, there is no evidence that a term in Agreement signed by Plaintiff omitted or included terms that were not discussed, as in Ramos. Plaintiff's opposition argues that Bravo concealed that he was an agent for the lender and that the loan terms regarding the cost or repayment were concealed. However, Plaintiff does not establish that Bravo had a duty to disclose any such alleged fact. Additionally, the Loan states the amount, including that "This is a DEFERRED INTEREST Loan. You must pay your Loan In full by 09/11/2024 to avoid paying accrued Interest charges" and " You agree to pay us the Amount Financed, together with interest on the unpaid balance of the Amount Financed from time to time, commencing on the date(s) we disburse Loan proceeds to your Merchant and ending on the date of payment in full."

Plaintiff does not otherwise identify terms that were represented by Bravo but not included in the agreement that was signed, like in Ramos, to establish fraud in the execution.

Additionally, The Court notes that the moving party may submit additional evidence in reply. (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060. [finding "the trial court abused its discretion" in striking supplemental declaration as untimely].) Further, the court in Gamboa, supra, 72 Cal. App. 5th at 171, noted the following: "In sum, once Gamboa produced evidence challenging the authenticity of the purported arbitration agreement, the Clinic was required to rebut the challenge by establishing by a preponderance of the evidence that the agreement was valid.

The Clinic did not have to authenticate Gamboa's signature on the arbitration agreement. The Clinic could have met its burden in other ways, including a declaration from the Clinic's custodian of records. But proferring no admissible evidence was insufficient." Here, Defendants provide a transcript of the "welcome call" wherein Plaintiff discusses the solar system and loan in the English language. This transcript also reflects specific discussion as to the interest rate, promotional period, and automatic payment terms contained in the loan.

Facts - Scope of Agreement The arbitration term widely defines claim as "any claim, dispute or controversy" and "is to be given the broadest possible reasonable meaning and includes claims of every kind and nature...based on constitution, statute, regulation, ordinance, common law rule...and equity. It includes disputes that seek relief of any time, including damages and/or injunctive, declaratory or other equitable relief."

Authority and Analysis - Scope of Agreement As noted above, the complaint seeks relief for violations of Civil Code section 1632, Consumer Legal Remedies Act, Unfair Competition, Breach of Implied Warranties, and Business and Professions Code section 7071.5, all of which appear to be within the scope of the broadly defined term "claim" in the Agreement. Therefore, the Court finds the claims are within the scope of the Agreement.

Facts - Defenses - Unconscionability As to procedural unconscionability, Plaintiff notes the adhesive nature of the Agreement, that it was presented in English without a Spanish translation, that Plaintiff signed the Agreement on Bravo's tablet, did not review the Agreement and was not told about the arbitration term by Bravo. As to substantive unconscionability, Plaintiff identifies the repayment obligation (regardless of whether the amount was distributed and whether the solar system was delivered as agreed), a pre-dispute resolution procedure, waiver of class and representative actions, and the bar on public injunctive relief in arbitration.

Authority and Analysis - Defenses - Unconscionability The inquiry into unconscionability consists of two prongs: A contract will be revoked if it is both procedurally unconscionable and substantively unconscionable. (Armendariz v. Foundation Health Psychcare Service, Inc. (2000) 24 Cal.4th 82, 102.) Procedural and substantive unconscionability need not be present to the same degree. "[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." (Id. at 114.)

Procedural Unconscionability "'Procedural unconscionability' concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. It focuses on the factors of oppression and surprise. The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party. The component of surprise arises when the challenged terms are 'hidden in a prolix printed form drafted by the party seeking to enforce them.'" (Nyulassy v.

Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.) The Court also considers whether circumstances of the contract's formation created such oppression or surprise that closer scrutiny of its overall fairness is required. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126-127.) "The circumstances relevant to establishing oppression include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney." (Id.)

As OTO recognizes, the pressure exerted on a standard employee to accept an adhesive arbitration agreement as a condition of employment is "particularly acute," which indicates oppression. (Id. at 127.) "An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power on a take-it-or-leave-it basis. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245.) But the fact that an agreement is adhesive is not, alone, sufficient to render it unconscionable. (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1561.) "[A] compulsory pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a 'take it or leave it' basis." (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.)

Here, the Court agrees there is a fairly high degree of procedural unconscionability, given the adhesive nature of the arbitration agreement on a preprinted form and the facts surrounding the presentation thereof. The Court notes here that the DocuSign record attached as Exhibit B to Defendants' motion indicate less than a minute of time elapsed between the "viewed" entry at 6:32:47 pm and the "signed" entry at 6:33:30 pm for a document that is approximately 30 pages long and including dense sections of text such as the arbitration provision.

Substantive Unconscionability Substantive unconscionability occurs when a contract, particularly, contracts of adhesion, impose terms "that have been variously described as overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided. All of these formulations point to the central idea that the unconscionability doctrine is concerned not with a simple old-fashioned bad bargain, but with terms that are unreasonably favorable to the more powerful party. Unconscionable terms impair the integrity of the bargaining process or otherwise contravene the public interest or public policy or attempt to impermissibly alter fundamental legal duties." (OTO, L.L.C. v. Kho, supra, 8 Cal. 5th at 129-30, internal quotations and citations omitted.)

First, Plaintiff argues that the term of the loan that requires payment of the loan even if the system is not delivered or installed renders the arbitration provision unconscionable. However, the Court agrees that this term does not affect the enforceability of the arbitration provision or the Court's analysis of substantive unconscionability with respect to arbitration.

Second, Plaintiff argues that the "Pre-Dispute Resolution Procedure" improperly adds a pre-lawsuit notice requirement for claims that do not otherwise have such a requirement. However, the Arbitration Agreement does not indicate that the failure to provide the pre-lawsuit notice and engage in that process results in a waiver of those claims. Subsection (k) states "Before a Complaining Party asserts a Claim in any Proceeding (including as an individual litigant or as a member or representative of any class or proposed class), the Complaining Party shall give the Defending Party:..." But, as noted in the reply, there appears to be no consequence as to the failure to provide notice, such as a bar to claims, waiver or other restriction. As such, the Court does not find this term substantive unconscionable.

Finally, Plaintiff argues that the Agreement's waiver of class and representative claims, including the waiver of public injunctive relief in arbitration, renders the "Class Action and Multi-Party Claim Waiver" invalid. If invalid, the Agreement states: "(j) Survival, Severability, Primacy.... If any part of this Arbitration Provision cannot be enforced, the rest of this Arbitration Provision will continue to apply, except that: (A), if the Class Action and Multi-Party Claim Waiver is declared invalid in a proceeding between you and us, without in any way impairing the right to appeal such decision, this entire Arbitration Provision (other than this sentence) shall be null and void in such proceeding."

Plaintiff, in support, cites to McGill v. Citibank (2017) 2 Cal.5th 945, 951: "The question we address in this case is the validity of a provision in a predispute arbitration agreement that waives the right to seek this statutory remedy in any forum. We hold that such a provision is contrary to California public policy and is thus unenforceable under California law. We further hold that the Federal Arbitration Act (FAA; 9 U.S.C. Sec. 1 et seq.) does not preempt this rule of California law or require enforcement of the waiver provision."

In reply, Defendants argue that Plaintiff does not seek public injunctive relief. However, the opposition states "Plaintiff does currently seek public injunctive relief" and the complaint's prayer seeks injunctive relief as to others. The Court, however, notes the significant difference between McGill and this matter: McGill waived a right to seek a statutory remedy "in any forum." Here, the Agreement states, in subsection (j): "...if a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action and Multi-Party Waiver or elsewhere in this Arbitration Provision prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated.

In such a case the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for public injunctive relief be arbitrated." (emphasis added.) Therefore, the Court does not find this term substantively unconscionable under McGill. The Court does not find the " Class Action and Multi-Party Claim Waiver" invalid.

However, the Court does find Plaintiff seeks public injunctive relief under the second cause of action under the CLRA and the third cause of action under the UCL. As such, the claims for public injunctive relief are stayed, pending arbitration, pursuant to the Agreement's statement that "In no event will a Claim for public injunctive relief be arbitrated." Therefore, while the Court has found procedural unconscionability, no substantive unconscionable terms have been identified by Plaintiff. Therefore, the Court does not find unconscionability precludes enforcement of the Arbitration Agreement. The Court sets a Case Management Conference regarding the status of the arbitration on February 19, 2027, at 8:30 AM in Dept.

2.

Discovery The Court is not inclined to stay the hearing on this motion pending discovery under Ontiveros v. DHL Express (USA), Inc. (2008) 164 Cal.App.4th 494, 508-509 as cited by Plaintiff. That case discusses, around the pinpoint cite, unconscionability of terms of an arbitration agreement, but does not discuss additional discovery to oppose a motion to compel arbitration.

Conclusion

Therefore, the Court grants the motion to compel these claims to arbitration, except that the Court stays the claims for public injunctive relief under the second and third causes of action pending completion of the arbitration. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Ramirez, Carlos Alberto vs. Ramirez, Ramon