Judge: Loren G. Freestone, Case: 37-2023-00026322-CU-BC-CTL, Date: 2023-10-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 18, 2023

10/19/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00026322-CU-BC-CTL PLIEGO VS COTA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Blanca Sales' motion to compel Plaintiff Rosa Pliego to arbitration and stay the case is GRANTED.

'The party seeking to compel arbitration has the burden of proving the existence of an enforceable arbitration agreement by a preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance any fact necessary to its defense. In considering a petition to compel arbitration, the court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion to reach a final determination.' (Baker v. Italian Maple Holdings LLC (2017) 13 Cal.App.5th 1152, 1157–1158.) Existence of an Agreement 'With respect to the moving party's burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court.' (Baker, supra, 13 Cal.App.5th at p. 1160.) Here, Sales presents a copy of the 'Manufactured Home Purchase Agreement and Joint Escrow Instructions,' which was attached as an exhibit to Pliego's complaint. Paragraph 24 of that agreement is entitled 'Dispute Resolution' and contains an arbitration provision that states: 'The Parties agree that any dispute or claim in law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration.' This arbitration provision has been described as 'extremely broad.' (Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 1094; see also Victrola 89 LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 356–357.) Pliego does not dispute that she signed the purchase agreement and separately initialed the arbitration provision. Nor does Pliego dispute that the arbitration provision is sufficiently broad to encompass her claims against Sales. As such, an agreement exists to arbitrate the instant dispute between Pliego and Sales.

Third-Party Litigation Exception Pliego argues that she has also sued Teresa Cota and South Bay International Partners Inc., and that Calendar No.: Event ID:  TENTATIVE RULINGS

3034523  20 CASE NUMBER: CASE TITLE:  PLIEGO VS COTA [IMAGED]  37-2023-00026322-CU-BC-CTL those defendants are not bound by the arbitration agreement and have refused to arbitrate. Pliego therefore argues that the court should deny the motion based on the third-party litigation exception.

Code of Civil Procedure section 1281.2(c), part of the California Arbitration Act states that a court shall compel arbitration unless it determines that a 'party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.' When subdivision (c) applies, a trial court has four options, including staying the arbitration or denying the motion to compel arbitration outright. (See Code Civ. Proc., § 1281.2.) However, '[i]n accordance with choice-of-law principles, the parties may limit the trial court's authority to stay or deny under the CAA by adopting the more restrictive procedural provisions of the FAA. The FAA's procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) do not apply unless the contract contains a choice-of-law clause expressly incorporating them. The question is not whether the parties adopted the CAA's procedural provisions: the state's procedural statutes (§§ 1281.2, 1290.2) apply by default because Congress intended the comparable FAA sections (9 U.S.C. §§ 3, 4, 10, 11) to apply in federal court. The question, therefore, is whether the parties expressly incorporated the FAA's procedural provisions into their agreements. The question of whether the Agreement incorporated the FAA's procedural provisions, thereby eliminating the trial court's authority under section 1281.2(c), is a question of law involving interpretation of statutes and the contract (with no extrinsic evidence).' (Victrola 89, supra, 46 Cal.App.5th at pp. 345–346.) In Victrola 89, the court interpreted a purchase agreement that was 'a standard form created and distributed by the California Association of Realtors (CAR).' (Victrola 89, supra, 46 Cal.App.5th at p. 342, fn. 1.) The agreement contained an arbitration provision that made various references to California law. It stated that the parties would 'have the right to discovery in accordance with Code of Civil Procedure § 1283.05,' that in 'all other respects, the arbitration shall be conducted in accordance with Title 9 of Part 3 of the Code of Civil Procedure,' that by initialing the provision the parties were agreeing to have their disputes 'decided by neutral arbitration as provided by California law,' that if either party refused to submit to arbitration they could be 'compelled to arbitrate under the authority of the California Code of Civil Procedure,' and that except as otherwise specified, the agreement would be 'interpreted and disputes shall be resolved in accordance with the Laws of the State of California.' (Id. at pp.

343–344.) However, the agreement also stated: 'Enforcement of this agreement to arbitrate shall be governed by the Federal Arbitration Act.' (Id. at p. 343.) The court of appeal held that this latter reference to the FAA was controlling and precluded application of section 1281.2. (See id. at pp.

346–352.) The purchase agreement that Pliego and Sales signed was also a CAR form, and it contains the identical arbitration provision that was at issue in Victrola 89, including the key provision that 'Enforcement of this agreement to arbitrate shall be governed by the Federal Arbitration Act.' Accordingly, the procedural provisions of the CAA do not apply and Pliego cannot rely upon section 1281.2 in opposing this motion.

Fraudulent Inducement Pliego argues that there 'are also serious questions about Plaintiff, who does not speak English, being fraudulently induced into signing the Agreement and thus being bound by the Agreement's arbitration provision.' 'It is true that arbitration may be refused where grounds exist for revocation of the agreement to arbitrate. Fraud in the inducement of the underlying contract, however, is not sufficient to defeat an arbitration clause. . . . This is because claims of fraud in the inducement are often intertwined with claims of contract breach. An arbitrator is competent and empowered to decide issues related to fraud in the inducement of the underlying contract.' (Johnson, supra, 84 Cal.App.4th at pp. 1094–1095; see generally Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d Calendar No.: Event ID:  TENTATIVE RULINGS

3034523  20 CASE NUMBER: CASE TITLE:  PLIEGO VS COTA [IMAGED]  37-2023-00026322-CU-BC-CTL 312.) Pliego does not contend that she was fraudulently induced to enter into the arbitration agreement specifically. Rather, she contends that she was fraudulently induced to enter into the purchase agreement generally. As set forth in Johnson, any such fraud is not a basis for denying the motion and must be decided by the arbitrator.

Civil Code Section 1632 Pliego argues that Sales failed to provide her with a Spanish language version of the purchase agreement. Pliego relies on Civil Code section 1632 in arguing this requires the motion be denied.

Section 1632 provides, in pertinent part: 'Any person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in writing, in the course of entering into [certain types of contracts], shall deliver to the other party to the contract or agreement, and any other person who will be signing the contract or agreement, and before the execution thereof, a translation of the contract or agreement in the language in which the contract or agreement was negotiated, that includes a translation of every term and condition in that contract or agreement.' (Civ.

Code, § 1632, subd. (b).) Pliego submits a declaration written in English. The declaration was purportedly prepared with the assistance of her English-speaking son (Alejandro Gutierrez), although Gutierrez did not submit his own declaration confirming that fact. Pliego declares that she (1) was born in Mexico City, (2) does not speak English proficiently, (3) was not provided a Spanish language version of the purchase agreement, and (3) could not read the English version of the purchase agreement.

Pliego has not met her burden of proving section 1632 applies here.

First, there is no evidence that Sales sold the home as part of a 'trade or business.' The complaint indicates that this was a manufactured home at a mobile home park, and the most reasonable inference is that Sales was selling her personal residence.

Second, there is no evidence that the purchase agreement was negotiated primarily in Spanish. The purchase agreement was an offer prepared by Pliego. It does not include any counter-offers by Sales.

It is therefore not clear that there were any negotiations at all. To the extent there were negotiations, there is no evidence that Sales speaks Spanish or that it was Pliego doing the negotiating, as opposed to her English-speaking son (who had also accompanied her to the office at Bonita Hills Estates to apply for the ground lease). (See Lopez v. Asbury Fresno Imports LLC (2015) 234 Cal.App.4th 71, 77 ['If the buyer brings an interpreter who negotiates with the seller in English, then the seller does not negotiate primarily in the foreign language'].) Third, the purchase agreement is not one of the types of contracts covered by section 1632. The section applies to a 'lease, sublease, rental contract or agreement, or other term of tenancy contract or agreement, for a period of longer than one month, covering a dwelling, an apartment, or mobilehome, or other dwelling unit normally occupied as a residence.' (Id. at subd. (b)(3).) However, the section does not apply to contracts for the purchase/sale of mobilehomes. (See Civ. Code, § 1632, subd. (b)(1)–(7).) Fourth, as noted above, the purchase agreement was an offer prepared by Pliego-not Sales. The statute is not intended to require the recipient of an agreement to return a translated document back to party who first prepared the agreement. (See Lopez, supra, 234 Cal.App.4th at p. 77 ['the statute prevents the seller from suddenly springing on the buyer a contract written in English and expecting the buyer to sign it without reviewing its terms'].) Finally, the remedy for a violation of section 1632 is rescission. (Civ. Code, § 1632, subd. (k).) However, Pliego does not pray for rescission of the purchase agreement, but rather prays for damages Calendar No.: Event ID:  TENTATIVE RULINGS

3034523  20 CASE NUMBER: CASE TITLE:  PLIEGO VS COTA [IMAGED]  37-2023-00026322-CU-BC-CTL based on Sales' alleged breach of the agreement. (See Orozco v. WPV San Jose LLC (2019) 36 Cal.App.5th 375, 403 ['A person claiming to be defrauded by false representation has a choice of two inconsistent remedies to wit, he may elect to rescind the contract; or, to affirm it and claim damages. He cannot do both.') Conclusion Sales met her burden of proving the existence of an agreement to arbitrate. Pliego did not meet her burden of proving a defense to enforcement. The motion to compel is therefore granted.

Pliego and Sales are order to arbitrate pursuant to the terms of the purchase agreement. Pliego's claims against Cota and South Bay are stayed pending the arbitration. The court sets a status conference for April 19, 2024 at 10:00am.

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