Chai v. National Enterprise Systems CA6

Filed 11/8/22 Chai v. National Enterprise Systems CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DAVID CHAI, H049322 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 20CV361490)

v.

NATIONAL ENTERPRISE SYSTEMS, INC.,

Defendant and Appellant. Respondent David Chai filed a class action complaint against appellant National Enterprise Systems, Inc. (NES) seeking statutory damages under Civil Code section 1788 et seq., the California Rosenthal Fair Debt Collection Practices Act. The trial court denied NES’s motion to compel arbitration, finding that NES failed to demonstrate the existence of a binding arbitration agreement between the parties. Finding no error, we affirm the trial court’s order. I. FACTUAL AND PROCEDURAL BACKGROUND Chai filed a complaint against NES in 2020, claiming that, on an unknown date, he was “alleged to have incurred a financial obligation in the form of a consumer credit account owed to Citibank, N.A. [Citibank].” He admitted that he was unable to pay the debt and defaulted. Chai contended that Citibank sold the debt to USI Solutions, Inc. (USI), for “collection purposes.” USI thereafter “hired, contracted, or otherwise engaged” NES to collect the debt on USI’s behalf. Chai asserted in the complaint that

NES engaged in a routine practice of sending initial communications that failed to provide notice as required by Civil Code section 1788.14, subdivision (d)(2), which governs attempts to collect “time-barred” debts—those that are “past the date of obsolescence set forth in Section 605(a) of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1691c). . . .” (Civ. Code, § 1788.14, subd. (d)(2).) After filing a response to the complaint, in which it alleged that Chai’s claims might be subject to an arbitration provision contained within the agreement between Chai and Citibank, NES filed a motion to compel arbitration. In support of the motion, NES offered two purported “cardholder agreements” produced by Citibank in response to a subpoena, issued in a separate action, seeking “credit card agreements, contracts, and any other document that outlines the terms and conditions [of the account belonging to Chai]. . . .” NES provided a declaration from the custodian of records indicating that the records provided were true copies of the records requested in the subpoena, prepared at or near the relevant time in the ordinary course of business. NES also provided a letter from the custodian, not signed under penalty of perjury, indicating that she was enclosing the available card agreement copies for Chai’s credit card account. The two documents provided by the custodian are entitled “Card Agreement,” one with a copyright date of 2005, and the other with a copyright date of 2011. Both include arbitration provisions. Neither card agreement references Chai by name or account number, and neither includes Chai’s signature. NES submitted the card agreements to the trial court as part of a declaration from its then-attorney, along with a copy of the complaint, NES’s answer, and two case management orders. Counsel did not include any additional documents received from Citibank. Nor did counsel provide any substantive declaration regarding Chai’s agreement(s) with Citibank. Chai opposed the motion to compel arbitration, arguing that NES failed to link Chai to the “generic documents” offered with the motion. Chai denied having seen the