Judge: Gail Killefer, Case: 23STCV15799, Date: 2024-01-17 Tentative Ruling

Case Number: 23STCV15799    Hearing Date: January 30, 2024    Dept: 37

HEARING DATE:                 Wednesday, January 17, 2024

CASE NUMBER:                   23STCV15799

CASE NAME:                        William R. Welch v. Dalia Auto Plaza, Inc.

MOVING PARTY:                 Defendant Dalia Auto Plaza, Inc.

OPPOSING PARTY:             Plaintiff William R. Welch

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Compel Arbitration and Stay Action

OPPOSITION:                        27 December 2023

REPLY:                                  8 January 2023

TENTATIVE:                         Defendant’s Motion to Compel Arbitration is granted in part as to the second through sixth cause of action and denied as to the first cause of action. The action is stayed pending arbitration.

Background

On July 7, 2023, William R. Welch (“Plaintiff”) filed a Complaint against Dalia Auto Paza, Inc. dba Diamond Buick GMC Cadillac Palmdale (“Defendant”) and Does 1 to 15.

The operative First Amended Complaint (“FAC”) alleges six causes of action: (1) Violation of California’s Consumer Legal Remedies Act; (2) Financial Elder Abuse; (3) Fraud/Concealment; (4) Negligence; (5) Violation and Injunctive Relief pursuant to Bus. & Prof. Code § 17200; and (6) Intentional Infliction of Emotional Distress.

The Complaint alleges that on March 20, 2023, Plaintiff went to Defendant for an oil change for his Corvette and decided to test drive a 2023 Sierra Denali heavy duty 2500, black truck with VIN No. 1GT49REY4PF238032. (FAC ¶ 14.) Plaintiff did not test-drive any other vehicles that day. (FAC ¶ 14.) Plaintiff negotiated a deal with Salesman Michael Cofield, wherein Plaintiff would trade in his 100% owned Corvette. (FAC ¶ 15.) “The negotiated deal was for $48,000 with a $41,000.00 trade-in down payment from Plaintiff’s 100% owned Corvette with an interest rate of 10%. The negotiated deal included a promise from the DEALER to send Plaintiff $7,000 the difference between the negotiated price of the 2023 Sierra Denali VIN 1GT49REY4PF238032 minus the trade-in value of Plaintiff’s 100% owned Corvette within 3 to 7 days.” (FAC ¶ 15.)

Despite receiving the 2023 Sierra Denali and turning in the pink slip for his Corvette to the dealership, on April 24, 2023, Plaintiff was informed that the sales contract had the wrong VIN. (FAC ¶ 19.)  The dealership demanded the return of the Plaintiff’s new vehicle and even reported the vehicle stolen. (FAC ¶¶ 19, 20, 26, 28.)

Plaintiff alleges that the VIN in the sales contract was switched without his knowledge and that he would not have traded in his Corvette, which he owned free and clear, for any vehicle other than the one he test-drove. (FAC ¶¶ 23, 30.) Plaintiff asserts that Defendant misrepresented the condition, characteristics, and price surrounding the vehicle and the correct course of action would be for Defendant to correct the VIN in Plaintiff’s sale contract rather than force Plaintiff into a smaller and different truck that he neither negotiated for nor intended to purchase. (FAC ¶¶ 30, 31.)

On November 15, 2023, Defendant filed a Motion to Compel Arbitration and stay the action pursuant to the arbitration clause in the sales contract. Plaintiff opposes the motion. The matter is now before the court.

motion to compel arbitration and stay action

I.         Legal Standard

Parties may be compelled to arbitrate a dispute upon the court finding that: (1) there was a valid agreement to arbitrate between the parties; and (2) said agreement covers the controversy or controversies in the parties’ dispute.¿(CCP § 1281.2; Omar v. Ralphs Grocery Co. (2004)¿118 Cal.App.4th 955, 961.)¿¿¿ 

¿¿¿¿ 

A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court¿(1998) 62 Cal.App.4th 348, 356-57.)¿¿¿¿ 

¿¿¿ 

“If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (CCP § 1281.4.

II.        Discussion

            A.        Existence of an Agreement to Arbitrate

Defendant moves to stay the action and compel arbitration based on the “Retail Installment Sale Contract – Simple Finance Charge (With Arbitration Provision)” (hereinafter the “Agreement”) that Plaintiff signed for a new 2023 GMC Sierra 2500HD truck with VIN 1GT49PEYXPF245040. (Mohammed Decl. ¶ 4, Ex. A [emphasis original].)

On the bottom of page 1 of the agreement, it states:

Agreement to Arbitrate: By signing below, you agree to the Arbitration Provision on page 5 of this contract, you or we may elect to resolve any dispute by neutral, binding arbitration and not by a court action. See the Arbitration Provision for additional information concerning the agreement to arbitrate.

(Mohammed Decl. ¶ 4, Ex. A at p. 1 of 6.) The Plaintiff’s electronic signature follows this statement. (Ibid.)

The arbitration provision states in relevant part:

Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, any allegation of waiver of rights under this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us . . . which arises out of or relates to your credit application, purchase or condition of this Vehicle, this contract or any resulting transaction or relationship . . . shall at your or our election, be resolved by neutral, binding arbitration and not by court action. . . The arbitrator may not preside over a consolidated, representative, class, collective, injunctive, or private attorney general action . . . Any arbitration under this Arbitration Provision shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) and not by any state law concerning arbitration…between you and us… which arises out of or relates to your credit application, purchase or condition of this Vehicle, this contract or any resulting transaction or relationship…shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action. . . This Arbitration Provision shall survive any termination, payoff or transfer of this contract. If any part of this Arbitration Provision, other than waivers of class rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. You agree that you expressly waive any right you may have for a claim or dispute to be resolved on a class basis in court or in arbitration. If a court or arbitrator finds that this class arbitration waiver is unenforceable for any reason with respect to a claim or dispute in which class allegations have been made, the rest of this Arbitration Provision shall also be unenforceable.

(Mohammed Decl. ¶ 4, Ex. A at p. 5 of 6.)

Plaintiff does not dispute that he signed the Agreement or that the agreement is not governed by the FAA. Rather, he challenges the validity of the Agreement on the grounds that: (1) Defendant committed fraud in the inducement and execution of the Agreement; (2) the Consumer Legal Remedies Act makes Defendant’s arbitration provision unenforceable; (3) Defendant waived the right to arbitration by filing a stolen vehicle police report; (4) Plaintiff is seeking injunctive relief such that the action is not arbitrable; and (5) the arbitration agreement is both procedurally and substantively unconscionable.

B.        Defendant Has Waived Right to Assert that a Delegation Clause Exists

“[C]hallenges to the validity of the arbitration clause itself are generally resolved by the court in the first instance. [Citations.] An exception to this rule applies when the parties have clearly and unmistakably agreed to delegate questions regarding the validity of the arbitration clause to the arbitrator.” (Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096, 1108.)

Defendant’s moving papers fail to reference or argue that a valid delegation clause exists that leaves to the arbitrator issues regarding the arbitrability and enforceability of the Agreement. 

Unlike the parties who moved to compel arbitration in Rent-A-Center, Ajamian, and Tiri, Employers did not raise the delegation clause in their moving papers. As noted, they first raised it in their reply papers in a cursory manner buried under an argument heading about the class action waiver. Their argument consisted of a short paragraph that cites Rent-A-Center. The point is otherwise undeveloped and could easily be overlooked or considered part of their argument on the class action waiver. On this record, the trial court may have impliedly found that Employers forfeited any argument regarding the delegation clause by failing to adequately brief it in their motions. Moreover, we conclude that Employers' briefing in the trial court was insufficient to preserve the issue for appeal.

(Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 770.)

The court finds that the Defendant has waived any right to argue that a delegation clause exists that precludes the court from determining the validity of the contract.

C.        The Arbitration Provision is Severable from the Contract and Plaintiff Fails to Challenge the Arbitration Provision Itself

“It has long been settled that when parties have agreed to arbitration, challenges to the validity of the underlying contract, including contract defenses such as fraud in the inducement or illegality, are for the arbitrator to decide. [Citations.]  This is because the arbitration clause is viewed as separate from the underlying contract. [Citation.] Thus, allegations that the main contract is unlawful or unconscionable does not affect the enforceability of the arbitration clause.”  (Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096, 1107–1108.)

Plaintiff alleges that he was fraudulently induced into signing the Agreement because the Agreement was for a vehicle with a different VIN from the vehicle that he test-drove and intended to purchase. (Welch Decl. ¶ 20; Cofield Decl. ¶ 4, Ex. 2)

However, because the arbitration provision is severable from the Agreement, Plaintiff must allege fraud in the inducement and execution of the arbitration provision itself, not just the Agreement as a whole.

There are two types of validity challenges under § 2: ‘One type challenges specifically the validity of the agreement to arbitrate,’ and ‘[t]he other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract's provisions renders the whole contract invalid.’ [Citation.] In a line of cases neither party has asked us to overrule, we held that only the first type of challenge is relevant to a court's determination whether the arbitration agreement at issue is enforceable. [Citations.] That is because § 2 states that a ‘written provision’ ‘to settle by arbitration a controversy’ is ‘valid, irrevocable, and enforceable’ without mention of the validity of the contract in which it is contained. Thus, a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate. ‘[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.’ [Citation.]

(Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70–71, 130 S.Ct. 2772, 2778, 177 L.Ed.2d 403 [italics original].)

Plaintiff’s argument that the entire Agreement was the product of fraud because it contains the wrong VIN fails because Plaintiff does not challenge the arbitration provision itself or allege that the agreement to arbitrate was procured through fraud.

D.        The Consumer Legal Remedies Act (CLRA) does not bar Arbitration

Plaintiff argues that the arbitration provision in the Agreement is unenforceable under CLRA because consumers are waived substantial rights afforded by the CLRA, including prohibiting representative actions, limiting discovery, limiting the application of state law, and requiring consumers to be responsible for their attorney’s fees and costs in violation of the fee-shifting provision of the CLRA (Civil Code § 1780(e)). (61 Cal.4th 899, 924 “[We conclude that the CLRA's anti-waiver provision is preempted insofar as it bars class waivers in arbitration agreements covered by the FAA”].) “In pronouncing that arbitration contracts ‘involving commerce’ are to be ‘valid’ and ‘enforceable,’ section 2 of the FAA by its terms invalidates contrary state laws except those that ‘exist at law or in equity for the revocation of any contract.’” (Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, 636–637.)

Therefore, the CLRA does not prohibit the enforcement of an arbitration agreement governed by the FAA unless the agreement is revocable in law or in equity, including unconscionability.

E.        Plaintiff Fails to Show that Defendant Waived the Right to Arbitration

“[Q]uestions of waiver are for the court rather than the arbitrator[.]” (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 28; see also CCP § 1281.2 (a).) “The question of waiver is generally a question of fact, and the trial court's finding of waiver is binding on [appeal] if it is supported by substantial evidence.” (Bower v. Inter-Con Security Systems, Inc.¿(2014) 232 Cal.App.4th 1035, 1043.) “Even if the record reflects that the trial court misunderstood or misapplied the law in reaching its conclusion, it will be affirmed if supported by any legal theory.” (Kokubu v. Sudo¿(2022) 76 Cal.App.5th 1074, 1082.)¿ 

Plaintiff argues that Defendant waived the right to arbitration by failing to seek arbitration before filing a stolen vehicle police report, thus taking an action inconsistent with the intent to arbitrate.

“‘The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.’” (Davis v. Shiekh Shoes, LLC¿(2022) 84 Cal.App.5th 956, 964 (Davis) citing National Foundation for Cancer Research v. A.G. Edwards & Sons, Inc.¿(D.C. Cir. 1987) 821 F.2d 772, 774.)¿ In Davis, the appellate court found that the waiver test articulated by the California Supreme Court in St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187 that was adopted from the Tenth Circuit opinion in Peterson v. Shearson/American Express, Inc. (10th Cir. 1988) 849 F.2d 464, is the correct test to apply to the question of waiver “minus the prejudice requirement.” (Davis at p. 966.) The St. Agnes/Peterson factors to assess claims of waiver are:¿¿ 

¿ 

(1) whether the party's actions are inconsistent with the right to arbitrate;¿¿

(2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate;¿¿ 

(3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay;¿¿ 

(4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; and¿¿ 

(5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place.¿ 
¿ 

(See Davis, supra, 84 Cal.App.5th 956; St. Agnes, supra, 31 Cal.4th at 1196; Peterson, supra, 849 F.2d at 467-468.)¿ 

Here, that Defendant filed a police report is not sufficient to find that Defendant waived the right to arbitrate. Moreover, the Agreement itself provides:

You and we retain the right to seek remedies in small claims court for disputes or claims within that court's jurisdiction, unless such action is transferred, removed or appealed to a different court. Neither you nor we waive the right to arbitrate any related or unrelated claims by filing any action in small claims court, or by using self-help remedies, such as repossession, or by filing an action to recover the vehicle, to recover a deficiency balance, or for individual or statutory public injunctive relief.

(Mohammed Decl. ¶ 4, Ex. A.) The court is not persuaded that the fact Defendant filed a police report is a waiver of the right to arbitrate as the Agreement does not limit self-help remedies like filling a police report.

The Plaintiff relies on Local 659, I.A.T.S.E. v. Color Corp. of America (1956) for the proposition that the filing of criminal proceedings constitutes repudiation of the agreement to arbitrate. In a dispute over whether dismissal pay was to be paid under the bargaining agreement, one labor union, Local 659, did not agree to arbitrate and instead “advised defendant that petitioner insisted on criminal proceedings and the matter will be referred to the ‘city attorney.’” (Id. at p. 193) The Defendant responded in a letter by stating “that the Company (defendant) chose to consider those tactics and his unequivocal refusal to arbitrate as a repudiation and breach of the contract, and that the Company would no longer consent to an arbitration’[.]” (Ibid.) The California Supreme Court found that the parties could rescind the contract by mutual agreement and that the defendant’s letter “[w]hile not too clear, that letter is readily susceptible of the construction that petitioner did not wish to arbitrate but preferred to proceed before the labor commissioner.” (Id. at p. 197.) Looking at the affidavits of the parties, the Supreme Court found “there had before then been a repudiation of the arbitration provision and acceptance thereof by defendant.” (Id. at p. 198.) “Indeed, it may well be concluded from those affidavits that there was a mutual rescission of the provision for arbitration.” (Ibid.)

Accordingly, in Local 659, what constituted waiver of the right to arbitrate was not that the petitioner sought to file criminal charges for violations of Labor Code section 222, but that the defendant employer had accepted Local 659’s repudiation of the agreement to arbitrate. Here, the Plaintiff fails to show that the parties mutually agreed to repudiate the agreement to arbitrate. That the Defendant filed a police report, an action that was permissible under the Agreement, is by itself insufficient to show waiver or repudiation of the agreement to arbitrate. (See Local 659, supra, 47 Cal.2d at p. 198 [“A repudiation of a contract accepted by the promisor excuses performance by the promise”].)

Here, Plaintiff fails to show that the act of filing a police report constitutes waiver of the Agreement when such conduct was a permissible self-help remedy under the Agreement. Moreover, unlike Vine v. PLS Financial Services, Inc. (W.D. Tex. 2016) 226 F.Supp.3d 719, the filing of the police report did not result in criminal charges that would “necessarily have to be litigated in [a] prior-filed criminal proceeding” such that Defendant has “sought to gain a significant benefit by engaging the criminal justice system” and should not be “afforded a ‘second bite of the apple’ through arbitration.” (Id. at p. 728.) Here, Plaintiff states that on May 4, 2023, he was informed by a Detective Campell, that the vehicle was no longer reported stolen “and had been removed from the system.” (Welch Decl. ¶ 13 filed on 12/17/2023.) Therefore, the court does not find that the litigation machinery has been substantially invoked to support a finding of waiver.

F.        Plaintiff’s Request for Injunctive Relief Does Not Void the Right to Compel Arbitration

Plaintiff argues that because he is seeking injunctive relief on behalf of the general public, the claims cannot be subject to arbitration. However, the FAC not only seeks injunctive relief but also monetary damages and punitive damages.

Here, Plaintiff’s reliance on Broughton v. Cigna Healthplans of California (1999)  to avoid arbitration altogether is unavailing. Although the court in Broughton found that the plaintiff in seeking injunctive relief was “ functioning as a private attorney general, enjoining future deceptive practices on behalf of the general public” the fact that “a CLRA injunctive relief action is not subject to arbitration does not necessarily lead to the conclusion that a CLRA action for damages is likewise inarbitrable.” (21 Cal.4th 1066, 1079-1084.) Therefore, “when a suit contains both arbitrable and inarbitrable claims, the arbitrable claims should be severed from those that are inarbitrable and sent to arbitration.” (Id. at p. 1088.)

Here, Plaintiff’s claims for damages are subject to arbitration, while Plaintiff’s request for injunctive relief under CLRA is severed from the arbitrable claims. “This is so even when severance leads to inefficiency.” (Broughton, supra, 21 Cal.4th at p. 1088.) The court declines Defendant’s request to find that Plaintiff request for private injunctive relief rather than public injunctive relief mandates that Plaintiff’s CLRA claims are arbitrable because Plaintiff seeks injunctive relief that concerns Defendant’s advertising practices that have the “primary purpose and effect” of benefiting the general public rather than merely “redressing or preventing injury to an individual plaintiff—or to a group of individuals similarly situated to the plaintiff[.]” (McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 955.)

Similarly, Defendant’s reliance on Hunter v. Kaiser Foundation Health Plan, Inc. (N.D. Cal. 2020) 434 F.Supp.3d 764 to argue that nothing in the Agreement precludes the arbitrator from awarding injunctive relief is also unavailing. In Hunter v. Kaiser, the District Court found that the arbitration provision did not prevent the arbitrator from awarding public injunctive relief: “Hunter points to nothing in the Agreement here that would preclude the arbitrator from awarding public injunctive relief.” (Id. at p. 781.) However, the Agreement expressly prohibits the arbitrator from awarding injunctive relief:

The arbitrator may not preside over a consolidated, representative, class, collective, injunctive, or private attorney general action.

(Mohammed Decl. ¶ 4, Ex. A.) Therefore, Hunter v. Kaiser is inapplicable. Accordingly, Plaintiff’s CLRA claims are severed from the arbitrable claims. The court will proceed to stay the action unless Defendant wishes to challenge Plaintiff’s CLRA claims and request for injunctive relief by way of demurrer.

G.        Arbitration Provision is Not Unconscionable

Plaintiff argues that the arbitration provision in the Agreement is invalid due to unconscionability. A showing of unconscionability requires procedural and substantive unconscionability.¿¿Procedural unconscionability asks whether there is oppression from unequal bargaining power or surprise from buried terms¿¿(Armendariz v. Foundation Health¿(2000) 24 Cal.4th 83, 114.) Substantive unconscionability asks whether there are overly harsh, one-sided terms.¿(Ibid.) Both are required to be proven to find unconscionability.¿However, there is a sliding scale; if an agreement is particularly substantively unconscionable, the petitioner need not show a large amount of procedural unconscionability, and vice versa. (Ibid.) “The party resisting arbitration bears the burden of proving unconscionability.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC¿(2012) 55 Cal.4th 223, 236.)

                        a.         Procedural Unconscionability¿ 

Plaintiff argues that Defendants’ failure to attach the rules makes the Agreement incomplete and uncertain, but the Agreement states that “You may get a copy of the rules of an arbitration organization by contacting the organization or visiting its website.” (Mohammed Decl. ¶ 4, Ex. A.) Therefore, the fact that the arbitration rules are not attached does not render the agreement void. Moreover, the fact that the rules are not attached does not make the Agreement unconscionable. (See Peng v. First Republic Bank (2013) 219 Cal. App. 4th 1462, 1472 (“[W]e find the failure to attach the [arbitration] rules, standing alone, is insufficient grounds to support a finding of procedural unconscionability.”); Bigler v. Harker School (2013) 213 Cal. App. 4th 727, 737 [failure to attach incorporated arbitration rules “is of minor significance” to procedural unconscionability]; Lane v. Francis Capital Mgmt. LLC (2014) 224 Cal. App. 4th 676, 691 [holding the employer’s “failure to attach a copy of the AAA rules did not render the agreement procedurally unconscionable”].)

Plaintiff also fails to show that the fact that Plaintiff’s signature is required multiple times, but only once in acknowledgment of the arbitration provision, is unconscionable as there is no case law supporting Plaintiff’s assertion. Moreover, the title of the agreement in all caps letter informs the reader the Agreement comes with an “ARBITRATION PROVISION” and the bottom of the first page lets the reader know that they are agreeing to arbitrate their claims and the specific provisions can be found in Page 5 of the Agreement. (Mohammed Decl. ¶ 4, Ex. A.)

Thus, there is no evidence of procedural unconscionability.

b.         Substantive Unconscionability

Plaintiff argues that the arbitration provision is unconscionable because Defendant limits the amount of its advance of all fees that the consumer may pay to only $5,000 without a provision for a fee waiver. (Mohammed Decl. ¶ 4, Ex. A at p. 5 [“We will pay the filing, administration, service, or case management fee and the arbitrator or hearing fee up to a maximum of $5,000 unless the law or the rules of the chosen arbitration organization require us to pay more.”].) “To state it simply: it is substantively unconscionable to require a consumer to give up the right to utilize the judicial system, while imposing arbitral forum fees that are prohibitively high. Whatever preference for arbitration might exist, it is not served by an adhesive agreement that effectively blocks every forum for the redress of disputes, including arbitration itself.” (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 90 (Gutierrez).)

The Agreement gives the parties the option of choosing “the American Arbitration Association (www.adr.org) or National Arbitration and Mediation (www.namadr.com) as the arbitration organization to conduct the arbitration.” (Mohammed Decl. ¶ 4, Ex. A at p. 5.) In order to show that the Agreement unfairly imposes arbitration fees on Plaintiff and consumers, Plaintiff needed to point to specific provisions in the American Arbitration Association or the American Arbitration Association that show the proceedings include costs and fees designed to prevent consumers from initiating or continuing in arbitration. In Guitierrez, the “[p]laintiffs presented substantial evidence in the trial court that the administrative fees exceeded their ability to pay,” but here plaintiff presents no evidence and in a conclusory manner asserts that the organization conducting the arbitration does not have a fee waiver provision. (Gutierrez, supra, 114 Cal.App.4th at p. 90.)

Moreover, Plaintiff claims that the Agreement limits discovery, but Plaintiff fails to point to the specific provision in the Agreement or rules of the arbitration organization that shows that discovery is unduly limited to prejudice the consumer. Moreover, the parties to arbitration agreement are permitted to agree to something less than the full panoply of discovery.¿ (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 104-105.)

Thus, there is no evidence of substantive unconscionability.

The court agrees that the Agreement is not unconscionable and sides with the courts in Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 907 and Roth v. Jaguar Land Rover North America, LLC (C.D. Cal., Dec. 4, 2017, No. SACV1701522AGDFMX) 2017 WL 10545074, at p.*3, that interpreted similar arbitration provisions to the one at issue and found them to be valid and enforceable.

Accordingly, Defendant’s Motion to Compel Arbitration is granted in part as to the second through sixth cause of action and denied as to the first cause of action. The action is stayed pending arbitration.

Conclusion

Defendant’s Motion to Compel Arbitration is granted in part as to the second through sixth cause of action and denied as to the first cause of action. The action is stayed pending arbitration.

Defendant to give notice.