Judge Ronald F. Frank, Case Number: 23TRCV01373, Date: 2023-10-23 Tentative Ruling

Factual

On May 1, 2023, Plaintiff, Kelly Poz and Ester Poz (collectively “Plaintiffs”) filed a Complaint against Defendant, Continental Funeral Home (Hawthorne), Inc., and DOES 1 through 100. The Complaint alleges causes of action for: (1) Breach of Contract; and (2) Negligent Infliction of Emotional Distress. Defendant seeks to enforce an arbitration clause and stay this litigation.

On October 31, 2023, Defendant filed a Motion to Compel Arbitration. On December 6, 2023, Plaintiffs filed an opposition. On December 12, 2023, Defendant filed a reply brief.

On December 19, 2023, this Court continued this motion, ordering the parties to submit supplemental briefing addressing the issue of a Spanish translation of the funeral services agreement and/or the one-page arbitration agreement. On January 19, 2024, both parties filed their supplement briefs, and a declaration was later provided to attach a certified translation of a Spanish-language exhibit previously submitted before the December 19 hearing.

Legal Standard

The Court previously discussed in its December 19 tentative ruling the standards by which an arbitration motion is judged, the burdens of proof, and the procedural and substantive unconscionability defenses raised by Plaintiffs.

Discussion

The parties both filed their supplemental briefings noting as follows:

Plaintiffs’ Supplemental Briefing

Here, Plaintiff notes, in response to the Court’s identified issue of Kelly Poz’s declaration being silent about whether her mother asked for or received a Spanish translation of the services contract, that her mother, Ester Poz, was provided a one-page document summarizing the items contracted for in Spanish. (Declarations of Ester Poz and Kelly Poz.) The one-page summary, in both English and Spanish, was attached to Defendant’ original motion papers as digital pages 33 and 34. The summary does not mention arbitration or anything else about claims or suits arising from an alleged breach of the multi-page contract. As such, Plaintiffs argue that it was reasonable for Ester Poz, after receiving the document in Spanish, to rely on the one-page summary information provided, and not review the other documents or ask for translations after her meeting. Plaintiffs do not address whether it was reasonable for Mom to ignore all the rest of the documents besides the translation, even though she signed several other documents in addition to the one-page summary. Neither party comments on the one-page Mortuary Waiver Form (digital page 30) that Ester Poz also signed, another document that includes an arbitration provision and jury waiver in it. Ester Poz does not dispute that her signature appears on the arbitration document along with that of relationship manager Ceballos.

Plaintiffs also note that pursuant to the California Translation Act, Plaintiff, Esther Poz may rescind the arbitration agreement under Civil Code § 1632(b)(2), if the Court were to finds that the Act applies to this transaction as “[a] loan or extension of credit secured other than by real property, or unsecured, for use primarily for personal, family, or household purposes.” Plaintiffs argue that because the contract for services includes a section for “cash advance” that they claim falls under section 1632(b)(2). Plaintiffs argue that the cash advance in the amount of $1,494 was a credit extended to Plaintiff, Ester Poz. Because of this, she argues that under the Translation Act, she should have been provided a Spanish translation of the entire set of documents. Neither party provides evidence or argument bearing on the “bring your own interpreter” exception to the California Translation Act, contained in subdivision (h)(1) of Civil Code section 1632, which might apply here if Kelly attended the meetings with Defendants’ staff where the contract documents were negotiated and Kelly discussed the matters with Continental Funeral Home’s personnel. But Ms. Ceballos does not remember the negotiation or who she discussed what with. The minimalist declarations of Kelly and Ester Poz did not discuss one way or another whether Kelly attended the negotiations with Ester.

Defendant’s Supplemental Briefing

At the instance of the Court at the prior hearing, Defendant attaches the declaration of Funeral Counselor for Plaintiff, Genesis Ceballos, confirming that she speaks and reads fluent Spanish. Ceballos also contends that although she does not have an independent recollection of Ester Poz, her standard practice with all customers who primarily speak and read Spanish is to: (1) verbally translate the Service Agreement, including the Binding Arbitration Agreement, from English to Spanish; or (2) verbally explain the content of each document to the customer in Spanish, and if a customer requests that she verbally translate an entire document from English to Spanish, she will do so. Further, Ceballos contends that customers are told that they do not need to sign the Service Agreement at the Continental Funeral Home—rather, they are free to take the documents home to review and consider before they execute them.

Defendant asserts that Plaintiffs’ argument that she did not understand the arbitration agreement cannot be taken at face value, as she could have asked for a translation, or sought to have it explained to her. Additionally, based on Ceballos’ description of the funeral home standard practice, she could have also taken the service agreement home to review and consider before signing it. Defendants note that the service agreement was executed on February 25, 2021, thirty (30) days prior to her mother’ death, and forty-two (42) days prior to executing a revised contract with Continental, giving her time to utilize the assistance of her bilingual daughter.

Finally, Defendant argues that the California Translation Act does not apply to the funeral services agreement. Moreover, Defendant argues that a service provider would have had to negotiate the entire contract in Spanish in order for them to be required to provide a Spanish translation of the written agreement.

Here, the Court does not determine that the providing of a Spanish version of the summary completely unburdens a signer of the contract of the responsibility of asking “What is this” or seeking a translation of any and every other document she signs, or requesting the entire version in Spanish. Moreover, the timeline of the service agreement being executed to the amendment being executed gave Plaintiff ample opportunity to seek out translation of the documents in their entirety. The Court is mindful that discussion with mortuaries are intensely stressful circumstances where reasons and reflection may not always occur given the imminent passing of a loved one. However, the weight of the evidence is that either Ester Poz did not ask what the two-paragraph, single-page Arbitration Agreement was before signing it, nor what the single page Mortuary Waiver Form said, or if she did then Ms. Ceballos would have provided an answer or translation. The Court is disturbed by the business practice of Continental Funeral Home to give Spanish-speaking customers a one-page summary of what they are signing that makes no mention of the waiver of a jury trial or the obligation to arbitrate disputes. Also concerning is that fact that some of the contract documents are in Spanish and English but the key document for this motion are not. How material could the arbitration agreement be to Defendant if the one-page arbitration agreement is not one of the translated documents and if a one-page Spanish summary of the translation makes no mention of arbitrating. In the COuort’s view, those concerns bear on procedural unconscionability, not on the controlling law regarding the binding effect of signed documents.

As the Court noted in its prior tentative ruling, “‘[o]rdinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have it read or explained to him.” (1 Witkin, Summary of Cal. Law (9th ed. 1987), § 120, p. 145.) This is not only the law of California but also the general rule around the country. (3 Corbin, Contracts (1960) § 607, pp. 668–669 [“One who signs an instrument when for some reason, such as illiteracy or blindness, he can not read it, will be bound by its terms in case the other party acts in good faith without trick or misrepresentation. The signer should have had the instrument read to him.’”] as cited in Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163.)

The Court is not persuaded by the plaintiffs’ argument that the service contract can be fit into the box of contracts for which the California Translation Act applies. There are no citations to cases where service contracts, like the service contract here, have been accepted to be protected under Civil Code § 1632(b)(2). The thrust of the contract, its gravamen, and primary terms, are not for a loan or extension of credit; rather, the cash advance is but incidental to the primary purpose of the contract and it is not the basis for which plaintiffs here have sued. Plaintiffs have not met their burden of showing that the California Translation Act applied to this transaction. As previously discussed, the Court has evaluated the procedural and substantive unconscionability points raised by the parties and concluded that there is no unconscionability defense here. As such, the Court is inclined to grant the motion to compel arbitration.

For the foregoing reasons, this Court GRANTS Defendant’s Motion to Compel Arbitration. The civil litigation is stayed. The claims of both Ester and Kelly Poz predicated on breach of contract plus other claims are ordered to be arbitrated per Ester’s signed agreement to do so and per Kelly’s claims that are largely derivative of and closely related to Ester’s claims.