2013-00142184-CU-BT

Minerva Henson vs. Auto Car, Inc.

Nature of Proceeding: Petition to Compel Arbitration

Filed By: Kolar, Elizabeth L.

The motion of Defendant Auto Car, Inc. d/b/a Autowest Honda of Roseville (“Honda of
Roseville”) to compel arbitration and stay this civil action is DENIED.

This case arises from three Retail Installment Sales Contracts (“RISC”) that Plaintiff
Minerva Henson (“Henson”) and Roseville of Honda purportedly executed. Based on
these documents, Henson has pleaded causes of action for (1) Violation of Consumers
Legal Remedies Act [CC §§ 1750 et seq.], (2) Fraud, (3) Violation of Rees-Levering
Motor Vehicle Sales and Finance Act [CC §§ 2981 et seq.], (4) Violation of B&P §§
17200 et seq., (5) Violation of B&P §§ 17500 et seq., (6) Declaratory Relief, and (7)
Conversion. The RISCs in question are dated 03/24/10, 04/15/10 and 04/22/10. All three
documents relate to the purchase of the same vehicle and contain the same arbitration
provisions. The parties agree that they executed the first two contracts, RISC 1 and
RISC 2. Henson alleges that Honda of Roseville rescinded both of these contracts.
Honda of Roseville does not address this allegation in its moving papers. Rather, it
has submitted the three, sequentially dated RISCs and simply argues that Henson is
obligated to arbitrate her claims under the contracts and the FAA. Henson counters
that RISC 3 is forged, i.e., that the buyer’s signature on that RISC is not hers. Given
this, and given Henson’s further contention that Honda of Roseville rescinded RISC 1
and RISC 2, she argues that there is no enforceable agreement requiring her to
arbitrate her claims.

“Under both federal and state law, the threshold question presented by a
petition to compel arbitration is whether there is an agreement to arbitrate.” (
th
Sparks v. Vista Del Mar Child and Family Svcs. (2012) 207 Cal.App.4 1511,
1517.) “Absent a clear agreement to submit disputes to arbitration, courts will
not infer that the right to a jury trial has been waived.” (Id. at 1518 [citation and
additional quotation marks omitted].) “A party seeking to compel arbitration has
the burden of proving the existence of a valid agreement to arbitrate.” (Id.
[citations omitted].) “Once that burden is satisfied, the party opposing
arbitration must prove by a preponderance of the evidence any defense to the
petition.” (Id. [citations omitted].)

First, the court concludes that Honda of Roseville has only met its initial burden
with respect to RISC 3. Honda of Roseville offers no explanation for the
existence of the three contracts. Under these circumstances, the court
concludes that RISC 3 supersedes its predecessors and is the only document
potentially governing the purchase and sale of the vehicle.

The court denies the motion, however, because Henson has carried her
responsive burden of demonstrating a defense to enforcement of RISC 3. As
noted above, Henson alleges (and currently argues ) that the buyer’s signature
on RISC 3 is forged. Henson has submitted testimony, which the court credits,
that she was not present in the United States when RISC 3 was purportedly
executed. (See Henson Decl., ¶¶ 4-7.) For purposes of the instant motion only,
the court finds that Henson has demonstrated a defense to enforcement of the
arbitration provisions in RISC 3. As a consequence, the motion to compel
arbitration must be denied.

In reaching its conclusion, the court rejects Honda of Roseville’s argument that the
arbitrator, not this court, must address the question of arbitrability in the first instance.
In making this argument, Honda of Roseville concedes that the question of arbitrability
is generally one for the courts. (Moving Memo. at 8:16.) Honda of Roseville argues,
however, that the RISCs in question clearly indicate an intent to have the arbitrator
decide the issue. (See id. at 8:14-11:5.) Because Henson has carried her burden of
demonstrating a defense to the RISCs’ enforcement, she has also demonstrated (for
purposes of this motion only) that the RISCs do no express her intent at all. Thus, the
court concludes that intent of the parties is not a basis upon which to divest this court
of authority to decide the issue of arbitrability.

Because the court denies the motion for the reasons stated above, it does not reach
the parties’ further dispute about the unconscionability of the RISCs’ arbitration
provisions.

The notice of motion does not provide notice of the court’s tentative ruling system, as
required by Local Rule 1.06(D). Counsel for moving party is directed to contact
counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the
court’s tentative ruling procedure. If counsel for moving party is unable to contact
counsel for opposing party prior to hearing, counsel for moving party shall be available
at the hearing, in person or by telephone, in the event opposing party appears without
following the procedures set forth in Local Rule 1.06(B).

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