Opinion
RYLAARSDAM, J. Defendant Household Bank (SB), National Association appeals from an order denying its petition to compel plaintiff James B. [87]Shea to arbitrate his claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and fraudulent and negligent misrepresentation. Defendant contends plaintiff is bound to arbitrate under the terms of an amendment to plaintiff’s credit card agreement. Plaintiff raises numerous arguments to defeat the arbitration agreement’s enforceability. We conclude plaintiff is not bound by the amendment and affirm.
Facts
In 1993, plaintiff opened a credit card account with defendant. The contract allowed defendant to modify it upon written notice: “. . . [W]e may change or terminate any term of this agreement or add any new terms at any time, including without limitation adding or increasing fees, [etc.] . . . .” (Capitalization and bold type omitted.) The contract also included a choice of law clause that designated Illinois and federal law to govern disputes. Six years later, plaintiffs account was revised; the choice of law clause now designates Nevada and federal law.
Subsequently, defendant notified plaintiff that effective September 10, 2000, his account would require that “any claim, dispute or controversy” be resolved through binding arbitration. Two days before the amendment became effective, plaintiffs attorney contacted defendant’s customer service department “to directly inform [it] that Mr. Shea was refusing to accept the arbitration agreement being unilaterally imposed by defendant, and that Mr. Shea no longer wished to continue using his account.” Plaintiff made no more purchases with his credit card, but did not immediately pay off his balance and close his account.
The following month plaintiff, as an individual and as a putative class representative, sued defendant, alleging it improperly charged card holders “overlimit fees and/or other penalties . . . .” In an amended complaint, Ellen Mandel was added as a plaintiff. Household Bank (Nevada), National Association, an entity related to defendant, was later substituted in when Mandel discovered her account was not with defendant. (Mandel is not a party to this appeal but is the respondent in a companion case, Mandel v. Household Bank (Nevada) (2003) 105 Cal.App.4th 75 [129 Cal.Rptr.2d 380].
Defendant filed a petition to compel plaintiff to arbitrate his claims and for a stay. (Code Civ. Proc., §§ 1281.2, 1281.4; 9 U.S.C. § 1 et seq.) It argued the arbitration provision is a valid modification of the contract and is fully enforceable under Nevada law. Plaintiff opposed the motion, contending, among other things, defendant could not unilaterally amend the original contract, and he expressly refused to be bound by the arbitration provision. [88]The court agreed plaintiff did not use his credit card after being given notice and refused to be bound by the arbitration clause; thus he could not be compelled to arbitrate.
Discussion
In a companion opinion, after striking a provision barring class arbitration, we conclude Ellen Mandel is bound to arbitrate her claims. (Mandel v. Household Bank (Nevada), supra, 105 Cal.App.4th 75.) Plaintiff repeats many of Mandel’s arguments we found unavailing. Unlike Mandel, however, plaintiff expressly refused to be bound by the amendment adding an arbitration requirement. In Badie v. Bank of America (1998) 67 Cal.App.4th 779 [79 Cal.Rptr.2d 273], the defendant tried to add an alternative dispute resolution provision to an existing account agreement by sending an insert setting out the terms with the monthly bill. The court refused to enforce an arbitration provision it determined was unilaterally added to the agreement. It found the plaintiff never agreed to arbitrate. “ ‘Although “[t]he law favors contracts for arbitration . . . [citation],” “ ‘there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate ....’” [Citations.]’ [Citations.]” (Id. at p. 788.)
Nonetheless, defendant contends the amendment binds plaintiff because he “kept his account open, and ... he continued to use [defendant’s] money . . . .” Under defendant’s argument, any time a credit card holder has an outstanding balance, the mere failure to pay it off immediately, without more, constitutes consent to a modification that will apply retroactively. True enough, plaintiff did not immediately pay off his outstanding balance and cut his card. He continued to “use” defendant’s money in the sense that he had previously made purchases on credit and did not immediately pay them off.
Nevada law does provide that “[p]arties may mutually consent to enter into a valid agreement to modify a former contract. [Citation.] . . . [C]on-sent to a modification may be implied from conduct consistent with an asserted modification. [Citation.]” (Clark County Sports Enterprises v. City of Las Vegas (1980) 96 Nev. 167 [606 P.2d 171, 175].) The question then becomes whether plaintiffs failure to immediately pay off the balance and cancel the card amounted to a ratification. Our answer is no.
There is no law directly on point, but federal and Nevada law, which govern the contract, support our conclusion. The federal Truth in Lending Act (15 U.S.C. § 1601 et seq.) regulates credit card agreements. Regulation Z (12 C.F.R. § 226.1 et seq. (2002)), which implements the statute, requires [89]a credit card issuer to give 15 days’ written notice of changes in terms. (12 C.F.R. § 226.9(c)(1).) However, in limited circumstances (12 C.F.R. § 226.9(c)(1), Supp. I), 15 days’ notice is not required; notice may be given simultaneously with the change. (12 C.F.R. § 226.9(c)(1).) These limited circumstances specifically exclude “the consumer’s use of the account (which might imply acceptance of its terms under State law) . . . .” (12 C.F.R. § 226.9(c)(1), Supp. I.) Based on this language and the absence of any other, it is reasonable to infer federal law defers to state law regarding the meaning of “use.”
Turning to Nevada law, while we found nothing directly defining “use” or “continuing use” of a credit card, one statute is instructive. It requires a card issuer to disclose to a customer the “terms and conditions that govern the use of the credit card . . . before or at the time” the card is sent to the customer. (Nev. Rev. Stat. Ann. § 97A.140, subd. 2.) It further states: “A cardholder shall be deemed to have accepted the written terms and conditions provided by the issuer upon subsequent actual use of the credit card.” (Ibid., italics added.)
In interpreting a statute under Nevada law, we look first to its plain language, attributing the usual, ordinary, and commonsense meaning. (See United States v. State Engineer (Nev. 2001) 27 P.3d 51, 53.) Where the words are susceptible to more than one meaning, we construe them to best effectuate the legislative intent. (Davenport v. Comstock Hills-Reno (Nev. 2002) 46 P.3d 62, 64, fn. 4.)
This portion of the statute refers to “actual use,” not just “use.” (Nev. Rev. Stat. Ann. § 97A.140, subd. 2.) This contrasts with five other instances where the statute employs merely “use.” We presume that “every word, phrase, and provision in the [statute] has meaning.” (Mangarella v. State (2001) 117 Nev. 130 [17 P.3d 989, 991], fn. omitted.) The commonsense meaning of “actual use” denotes some kind of affirmative act; mere inaction would not seem to suffice.
Although acceptance of the terms of an amendment to the credit card agreement is not covered by this section, this provision (Nev. Rev. Stat. Ann. § 97A.140, subd. 2) and one allowing issuers to unilaterally modify credit card agreements (Nev. Rev. Stat. Ann. § 97A.140, subd. 4) are contained in the same section and therefore are part of the statutory scheme regulating credit card issuers. It is not likely the legislature would have required actual use by a consumer to accept the original terms of a credit card agreement but settled for something less definite or overt to signify acceptance of an amendment to that agreement.
[90]We acknowledge Nevada law provides for unilateral modification of credit card contracts by the issuer. (Nev. Rev. Stat. Ann. § 97A.140, subd. 4.) But it is not reasonable to presume the Nevada Legislature intended to allow all modifications to be applied to all previous extensions of credit, no matter what the consumer does to demonstrate lack of agreement.
Defendant claims plaintiff had a way to avoid application of the amendment—cancel the account and pay off the balance. The dissent agrees, maintaining a party cannot simultaneously repudiate and benefit from a contract. But we are not persuaded paying off the balance pursuant to previously agreed upon terms constitutes a benefit. The dissent’s position is also based on the unwarranted premise that a credit card holder is always in a financial position to be able to immediately pay off the entire balance when confronted with an unacceptable change of terms. In fact, it is much more likely the reverse is true, and credit card issuers must be aware of that. So, when placed between Scylla and Charybdis, the practical result is the consumer has no choice at all and is forced to “agree” to the modification.
Under these facts, enforcement of the provision would also fly in the face of California public policy. In Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094 [118 Cal.Rptr.2d 862], we upheld a unilateral amendment adding an arbitration provision. But the amendment gave the plaintiff the option to close his account if he did not agree to arbitration. Thus, there the plaintiff actually could have paid off the balance and avoided arbitration.
Here, by contrast, plaintiff could not escape from the confines of arbitration. The amendment states: “This arbitration agreement shall survive termination of your Account as well as the repayment of all amounts borrowed hereunder.” Even if plaintiff had done what defendant suggests, he still would have been subject to the arbitration provision; there was no way for him to opt out. That issue is not before us; the parties did not argue it. However, a good case could be made the term was unconscionable.
But such a determination is not a necessary underpinning of our decision. Based on the particular facts of this case and applicable law, we will not enforce the arbitration provision.
Disposition
The order is affirmed. Respondent shall recover his costs on appeal.
Sills, P. J., concurred.