2018-00234324-CU-BC

Ka’disha Fong vs. Sunrise Auto Source

Nature of Proceeding: Petition to Compel Arbitration

Filed By: Fuller, Chad R.

Defendant Credit Acceptance Corporation’s (“CAC”) motion to compel arbitration is DENIED.

This action arises out of Plaintiff Ka’disha Fong’s purchase of a used vehicle from co-defendants Sunrise Auto Source (“Sunrise”) and Alexey Gerasenkov (“Gerasenkov”). Plaintiff alleges that on 3/2/2018, she purchased the vehicle from Sunrise.

Gerasnekov is alleged to be Sunrise’s owner, manager, alter-ego. Plaintiff alleges that Sunrise agreed to sell the vehicle for $6,200 plus taxes and fees. Gerasnekov prepared, and Plaintiff signed the handwritten Retail Installment Sale Contract (“Handwritten RISC”). She alleges that the Handwritten RISC was not completely filled out, and Gerasnekov informed her that he needed to finalize the financing electronically. She alleges that the Handwritten RISC failed to set forth all agreements of the buyer and seller with respect to the total costs and terms of payment. She alleges that without her knowledge, Gerasnekov created an electronic Retail Installment Sale Contract (“Electronic RISC”). Gerasnekov did not show the Electronic RISC to Plaintiff, and Plaintiff did not sign it. She alleges that Gerasnekov forged Plaintiff’s electronic signature on the Electronic RISC and submitted it for financing to CAC. She alleges that the CAC is attempting to enforce the Electronic RSIC and is engaging in debt collection based on the Electronic RISC.

Plaintiff asserts a breach of contract action against Sunrise seeking rescission of the Handwritten RISC, as well as fraud. As against CAC, she asserts a cause of action for Violation of the Rosenthal Fair Debt Collection Practices Act, Violation of B&P Code §17200, and Declaratory Relief.

CAC moves to compel arbitration pursuant to an arbitration provision in the Electronic

RISC. There is no arbitration provision in the Handwritten RISC.

Plaintiff opposes on the ground that no valid arbitration agreement exists because she did not consent to nor sign the Electronic RISC. Plaintiff supports her opposition with her declaration. She avers that during the sale, Gerasnekov prepared, and she signed, the Handwritten Retail Installment Sale Contract for the sale of the vehicle. The Handwritten RISC was not completely filled out when Gerasnekov asked that she sign it. She asked Gerasnekov why the Handwritten RISC was not filled out, and he informed her that he needed to finalize the financing electronically, and that her first payment would be approximately $ 166 per month. She did not authorize him to draft or generate a new contract. In reliance on Gerasnekov’s representations regarding financing, she signed the Handwritten RISC. The Handwritten RISC did not contain an arbitration clause, and Gerasnekov never informed her that disputes arising from the sale of the vehicle would be subject to arbitration. She did not agree to arbitrate this matter. After signing the handwritten RISC, and without her knowledge, Gerasnekov created the Electronic RISC. He did not show her the Electronic RISC, and she did not sign it. Instead, Gerasnekov forged her electronic signature and submitted it for financing to CAC. (Declaration of Ka’Disha Fong.)

Plaintiff has proffered sufficient evidence showing that she never consented to arbitration and did not sign the Electronic RISC. CAC proffers no evidence to dispute this. Notably, there is no declaration from Gerasnekov averring that Plaintiff signed the Electronic RISC or consented to arbitration. Therefore, CAC has not shown that a valid arbitration agreement exists with Plaintiff. Without the existence of a valid arbitration agreement, the motion to compel is DENIED.

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