Judge Nathan R. Scott, Case Ross v. Surf City Auto Group 2022-08-05 Tentative Ruling

Judge: Nathan R. Scott, Case: Ross v. Surf City Auto Group, Date: 2022-08-05 Tentative Ruling

Case Management Conference

The CMC is vacated. A status conference re binding arbitration is set for 5/4/22 at 2 pm.

Motion to Compel Arbitration

Defendant Surf City Auto Group, Inc.’s motion to compel arbitration is granted. (Code Civ. Proc., §§ 1281.2, 1281.4.)

Plaintiff Kaelyn Ross shall submit her claims against defendant to binding arbitration pursuant to their agreement.

This action is stayed pending completion of arbitration.

Defendant met its burden to show a written arbitration agreement exists that covers plaintiff’s claims. (Code Civ. Proc., § 1281.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Tucker decl., ¶¶ 4-5 & Ex. A.)

Plaintiff has not shown grounds to deny enforcement.

While some procedural unconscionability exists, the agreement (after severance, see below) is not substantively unconscionability. (See Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4^th 83, 114 [both procedural and substantive unconscionability must be present].)

The “self-help” provision applies to both parties and preserves rights both parties already possess. (See Code Civ. Proc., § 1281.8, subd. (b).)

While plaintiff’s selection of arbitration forum may be subject to defendant’s approval, defendant must exercise that discretion reasonably and in good faith. (See DeHaro Street Investors v. Department of Housing and Community Development (2008) 161 Cal.App.4th 1240, 1253; Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 500-501.)

But the court severs the substantively unconscionable fee provision: “The amount we pay may be reimbursed in whole or in part by decision of the arbitrator if the arbitrator finds that any of your claims is frivolous under applicable law. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law.” (See Code Civ. Proc., § 1284.3, subd. (a); see also McManus v. CIBC World Markets Corp. (2003) 109 Cal.App.4th 76, 102 [severing unconscionable fee provision and compelling arbitration].)

The court exercises its discretion to consider plaintiff’s amended 8/1/22 declaration.

Defendant shall give notice.