2013-00142383-CU-BC

Marc S. Cooper vs. Wells Fargo Bank

Nature of Proceeding: Petition to Compel Arbitration

Filed By: Christopherson, Dean A.

Defendant Wells Fargo Bank, N.A.’s Motion to Compel Arbitration is ruled upon as follows.

Plaintiff is admonished for filing an opposition that exceeds the 15 page limit set forth
in C.R.C. 3.1113(d).) The Court considered the opposition although it had the
discretion not to do so.

In this action, Plaintiff Marc Cooper alleges that Defendant agreed to provide a safe
deposit box to Plaintiff and agreed to keep the contents safe, but subsequently closed
the box and removed the contents without any notice to Plaintiff.

Defendant now moves to compel arbitration of Plaintiff’s claims in this matter.
Defendant contends that when Plaintiff opened the safe deposit box, he executed a
“Safe Deposit Box Lease Agreement” that contained an arbitration provision. (Lowry
Decl. Ex. 1.) Defendant argues that the Lease Agreement incorporated the Safe
Deposit Box Lease Terms disclosure, which provided that claims arising out of the
lease of the safe deposit box must be resolved through binding arbitration. (Lowry
Decl. Ex. 1.) Defendant contends that Plaintiff is bound by this agreement to arbitrate
because his claims for fraud and breach of contract arise out of the agreement to lease
the safe deposit box.

Plaintiff opposes the motion on a number of grounds. First, Plaintiff contends that copy
of the alleged lease agreement is not authentic. Plaintiff argues that he signed the
lease agreement on December 12, 2006, but the copy of the agreement Defendant
presents in support of its motion indicates the document was executed on April 21,
2007, over five months later. Plaintiff contends that the discrepancy in the date of the
purported agreement to arbitrate undermines Defendant’s contention that Plaintiff did
in fact execute the agreement on December 12, 2006, the date the safe deposit box
was opened.

On reply, Defendant does not address this discrepancy and does not explain why the
executed lease agreement reflects a date more than five months after Defendant itself
concedes the agreement was made. In the absence of any reasonable explanation for
the discrepancy, the Court cannot conclude that Plaintiff entered into a valid
agreement to arbitrate. Plaintiff has therefore met his burden to establish the
agreement claimed by defendant, as defendant claims exists, does not exist.

The Supreme Court has outlined the burden-shifting scheme for petitions to compel
arbitration as follows:

“[W]hen a petition to compel arbitration is filed and accompanied by prima facie
evidence of a written agreement to arbitrate the controversy, the court itself
must determine whether the agreement exists and, if any defense to its
enforcement is raised, whether it is enforceable. Because the existence of the
agreement is a statutory prerequisite to granting the petition, the petitioner
bears the burden of proving its existence by a preponderance of the evidence. If
the party opposing the petition raises a defense to enforcement–either fraud in
the execution voiding the agreement, or a statutory defense of waiver or
revocation (see § 1281.2, subds. (a), (b))–that party bears the burden of
producing evidence of, and proving by a preponderance of the evidence, any
fact necessary to the defense. [citation].”

(Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413, emphasis added.)

Accordingly, the motion to compel arbitration is denied, without prejudice.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.