Ramos v. Westlake Services

Filed 10/30/15; pub. order 11/24/15 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ALFREDO RAMOS,
Plaintiff and Respondent,
A141353
v.
WESTLAKE SERVICES LLC, (Alameda County
Super. Ct. No. RG13682419)
Defendant and Appellant.
Defendant Westlake Services LLC appeals from the trial court order denying its
motion to compel arbitration as to plaintiff Alfredo Ramos. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Ramos’s Underlying Complaint
Alfredo Ramos, and coplaintiffs who are not parties to this appeal,1 sued
Defendant Westlake Services LLC (Westlake) for causes of actions arising out of their
purchase of used automobiles. In the operative first amended complaint filed July 30,
2013, Ramos alleged that he “purchased an automobile from Pena’s Motors. Upon
arrival, he was greeted by one of this dealership’s employees, who spoke with him in his
native tongue (i.e., Spanish). Negotiations for this transaction were conducted primarily
in Spanish. Pena’s Motors and its employees had authority to sell and make
representations on behalf of Westlake with respect to the sale of its GAP contracts
1
Coplaintiffs were Lorena Castillo and Jesus Vasquez. Only Ramos is party to
this appeal.
1
covering automobiles. Defendant eventually charged RAMOS money for a GAP contract
to cover the vehicle he purchased. A copy of the GAP contract (‘Guaranteed Auto
Protection—GAP Waiver’ form) was not provided to him in Spanish.”
As alleged by Ramos, a “GAP” contract is an “optional insurance policy contract
that is sold to or purchased by a consumer in conjunction with his or her purchase and
financing of an automobile. In exchange for the payment of a premium by the consumer
and/or purchaser of the automobile, the ‘GAP’ insurance policy contract, which identifies
the respective rights and liabilities of the parties to the contract, is purportedly intended to
pay the difference between the actual cash value of the financed automobile and the then-
current outstanding balance on the loan for the automobile should the financed
automobile be destroyed or ‘totaled’ in an accident.”
Ramos asserted three causes of action based on Westlake’s failure to provide a
translation of the GAP contract: (1) violation of the Consumers Legal Remedies Act
(CLRA), Civil Code section 1750, et seq.2; (2) violation of section 16323; and (3)
violation of the unfair competition law (UCL), Business and Professions Code section
17200, et seq.
B. Westlake Moves to Compel Arbitration
On November 14, 2013, Westlake moved to compel arbitration of Ramos’s and his
coplaintiffs’ claims, relying on the arbitration provisions contained in the underlying
2
All further unspecified statutory references are to the Civil Code.
3
Section 1632 provides in relevant part that “[a]ny person engaged in a trade or
business who negotiates primarily in Spanish” in certain transactions, including auto
sales, “shall deliver to the other party to the contract or agreement and prior to 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.” (§ 1632, subd. (b).) Notwithstanding the
translation provided, the “terms of the contract or agreement that is executed in the
English language shall determine the rights and obligations of the parties,” but the
translation “shall be admissible in evidence only to show that no contract was entered
into because of a substantial difference in the material terms and conditions of the
contract and the translation.” (§ 1632, subd. (j).) If a translation is not provided, “the
person aggrieved may rescind the contract or agreement.” (§ 1632, subd. (k).)
2
sales contracts they each had signed. In support of the motion, Westlake provided the
declaration of John Schwartz, the manager of dealer compliance and first payment
collection for Westlake, and one of its custodians of records. Pertinent for our purposes
is Exhibit 3 to Schwartz’s declaration, which Schwartz identified as a copy of the
“Conditional Sale Contract and Security Agreement that Alfredo Ramos entered into
when he purchased his 2005 Ford Expedition from Pena’s Motors in July 2011.”
According to Schwartz, Ramos’s contract was later assigned to Westlake.
The Conditional Sale Contract and Security Agreement attached to Schwartz’s
declaration is in English (English Contract). It is signed by Ramos and a representative
from Pena’s Motors. Page 6 of the contract has a section heading highlighted in bold that
states “Please Read Carefully! Notice of Arbitration.” This section of the contract
contains the arbitration agreement that is the basis of defendant’s motion; it purports to
cover “any claim or dispute in contract, tort, statute or otherwise between you and us or
our employees . . . that arises out of or relates to your credit application, this Contract or
any related transaction or relationship.” 4 The arbitration agreement ends by stating:
“CAUTION: It is important that you read this Arbitration Agreement thoroughly before
you sign this Contract. By signing it, you are saying that you have read and understand
this Arbitration Agreement, and have received a copy of it. If you do not understand
something in this Arbitration Agreement, do not sign this Contract; instead ask your
lawyer. You or we may reject this Arbitration Agreement by sending to the other a
4
The arbitration agreement provides for arbitration through National Arbitration
and Mediation and states that the arbitrator “shall have no jurisdiction or other
authority . . . to preside over or rule on any claim asserted or litigated as a class action,
representative action, or similar proceeding.” Westlake agrees to advance Ramos a
maximum of $1,500 to cover filing, administration, and related expenses. The arbitration
agreement provides that each party is responsible for its own costs and attorneys’ fees,
unless the arbitrator awards costs or fees to a party. Either party may seek to appeal the
initial arbitrator’s award to a second arbitrator only where the “amount in controversy is
in excess of $100,000.00 or involves a claim or order for permanent injunctive relief.” In
addition, certain remedies are exempted from the arbitration provision, such as self-help
remedies or judicial provisional remedies.
3
rejection notice by certified mail or by messenger service within 10 days after signing
this Contract.”
C. Ramos’s Opposition to the Motion to Compel Arbitration
In support of his opposition to the motion to compel, Ramos submitted his own
declaration, which had been prepared with the assistance of an interpreter. Each English
paragraph in Ramos’s declaration is followed by a Spanish translation of the text.
Ramos’s declaration is the only evidence in the record of what happened in
connection with his purchase of the used automobile, and we quote it verbatim, omitting
only the paragraph numbers. “On July 2, 2011, I purchased an automobile from Pena’s
Motors in Brentwood. Upon arrival, I was greeted by one of the dealership’s employees,
who spoke with me in my native language, Spanish. [¶] Negotiations for this transaction
were conducted primarily in Spanish. [¶] During the negotiations for the transaction and
the signing of the paperwork, arbitration and alternative dispute resolution never came
up. [¶] Although the dealer provided me with a Spanish translation of a conditional sale
contract, the Spanish copy of the contract was different than the English copy of the
contract which I was told to sign. The Spanish version of the sales contract does not have
the ‘Arbitration’ clause. Further, I do not recall ever receiving a Spanish translation of
the actual GAP contract or of any forms pertaining to GAP coverage. [¶] For the first
time, I learned from my attorney that I had ‘agreed’ to arbitrate all claims against
Defendant. I was surprised and had I known about these I would not have agreed to it.”
Ramos’s declaration was accompanied by two declarations from Angelica
Mendez. One of Mendez’s declarations states essentially that she is a certified interpreter
who primarily translates for the Superior Court of Santa Clara County; she
“assisted . . . Ramos in the preparation of his declaration;” she “accurately translated
from the English language to the Spanish language, and from the Spanish language to the
English language, in the preparation of [Ramos’s] declaration;” and she “made a true
interpretation of Plaintiff’s testimony in this matter.”
The other declaration from interpreter Mendez, entitled “Declaration of Interpreter
Angelica Mendez re Spanish Language Version of the Sales Contract,” states in pertinent
4
part as follows: “3. I have reviewed the English version of the ‘Conditional Sale Contract
and Security Agreement’ signed by Mr. Alfredo Ramos attached as Exhibit A. [¶] 4. I
also reviewed the Spanish version of the ‘Conditional Sale Contract and Security
Agreement’ signed by Mr. Alfredo Ramos attached as Exhibit B. [¶] 5. The Spanish
copy of the ‘Conditional Sale Contract and Security Agreement’ is different from the
English copy of the ‘Conditional Sale Contract and Security Agreement.’ The Spanish
version of ‘Conditional Sale Contract and Security Agreement’ does not have the
arbitration clause.” (Emphasis added.)
It is undisputed that the English version of the Conditional Sale Contract and
Security Agreement referred to in the Mendez declaration is the same as the English
Contract attached to the Schwartz declaration. It is also undisputed that the Spanish
version of the contract offered by Ramos (Ramos Translation) has no arbitration clause.
The Ramos Translation contains Ramos’s typewritten name and address, his signature on
a number of pages, and terms of the car purchase (for example, the price, vehicle
identification number, and the like).
Ramos argued in his opposition to the motion to compel arbitration that there was
no agreement to arbitrate between him and Westlake. The contract was negotiated
primarily in Spanish and an accurate translation that included the arbitration provision
was never provided. Ramos, citing Rosenthal v. Great Western Financial Securities
Corp. (1996) 14 Cal.4th 394 (Rosenthal), argued that there was fraud in the execution of
the arbitration agreement and thus mutual assent was lacking because the parties never
discussed arbitration, and he had never seen the arbitration clause because it was “hidden
in the English version of the [underlying sales contract].” Ramos also argued that
Westlake’s failure to provide an accurate Spanish translation resulted in a violation of
section 1632 and, as a result, the entire contract was “unenforceable and void, including
5
the arbitration clause;” and that the arbitration agreement was procedurally and
substantively unconscionable and should not be enforced.5
D. Westlake’s Reply Brief
In its reply brief, Westlake attacked the Ramos Translation as “inadmissible,
because no foundation had been laid for it.” Westlake offered a supplemental declaration
of John Schwartz, who this time identified himself as “one of the Westlake employees
who has custody, supervision, and control of the records and documents regarding the
conditional sale contacts [sic] that Westlake purchases from dealers.” Based on his
“review of Westlake’s files and documents” for Ramos, he attached as Exhibit 1 what he
represented was “a true and correct copy of the Spanish version of Ramos’s Conditional
Sale Contract and Security Agreement that Pena’s Motors provided to Westlake when
Westlake purchased Ramos’s contract.” We refer to this version as the Westlake
Translation.
In many ways, the Westlake Translation is the same as the Ramos Translation.
The same form publisher appears to have produced both Spanish translations; the terms
of the underlying car sale and loan are typed on both forms; and every substantive
provision in the Ramos Translation is contained in the same place, verbatim, in the
Westlake Translation. There is one key difference. Unlike the Ramos Translation, the
Westlake Translation has an arbitration agreement, in Spanish, on the penultimate page of
the document. The arbitration provision contained in the Westlake Translation is for the
most part the same as the arbitration provision in the English Contract, with the exception
that the Spanish arbitration provision names the American Arbitration Association and
National Arbitration Forum as the arbitration provider, rather than National Arbitration
and Mediation in the English Contract. Further, the Westlake Translation has no
signatures.
5
Ramos’s argument that there was no agreement to arbitrate because the Spanish
translation Ramos received did not contain an arbitration provision is completely separate
from the merits of his underlying claims that Westlake violated various California
statutes by failing to provide a translation of the “GAP” insurance contract.
6
In sum, while Ramos offered a Spanish translation of the underlying sales contract
which made no reference to arbitration, Westlake produced in reply a Spanish translation
of the underlying sales contract which included an arbitration agreement. This was the
evidence presented to the trial court.
E. The Trial Court’s Ruling on Westlake’s Motion to Compel
On January 22, 2014, the trial court issued an order granting Westlake’s motion to
compel arbitration as to coplaintiffs Castillo and Vasquez, but denying the motion to
compel arbitration as to Ramos.
As to Castillo and Vasquez, the trial court found that because both admitted that
they received Spanish translations of their sale contracts at the time of their transactions,
they could not rely on section 1632 to avoid arbitration. The court also rejected Castillo
and Vasquez’s unconscionability argument, finding that they had demonstrated only a
“minimal degree of procedural unconscionability” and had failed to show that any
substantive terms in the arbitration provision were overly one-sided.6
As to Ramos, however, the trial court found that while he had received a Spanish
translation of the English Contract, the translation he received did not contain an
arbitration agreement. The court recognized the differences between the Ramos
Translation and the Westlake Translation, detailed above, and noted the “variation in the
overall number of pages [between the two versions] is explained by the entire absence of
what appears in Westlake’s version as ‘Pagina 7 de 9,’ upon which the arbitration
provision—and only the arbitration provision—appears.” The court took this “as an
indication that this particular forms publisher offered versions of the [retail installment
sale contract] (at least those in Spanish) both with and without an arbitration provision.”
The court rejected Westlake’s argument that the Westlake Translation was the only
translation properly before the court: “The Supplemental Declaration of John Schwartz
attaches ‘a true and correct copy of the Spanish version of Ramos’ [retail installment
6
As we have noted, Castillo’s and Vasquez’s cases are not before us on appeal.
7
contract]7 that Pena’s Motors provided to Westlake when Westlake purchased Ramos’
contract . . . .’ The issue here, however, is what Ramos agreed to, not what Westlake was
given by the seller. As to the manner in which Ramos placed the Spanish language
translation into evidence, while the exhibit was not attached to the Ramos declaration,
and the interpreter’s declaration does not attempt to authenticate it, Ramos does clearly
state in his declaration that the Spanish version of the RISC provided to him by the dealer
does not have the Arbitration clause. Furthermore, the version presented by Ramos
includes his signature and initials in multiple locations, which the version presented by
Westlake does not. Accordingly, the court accepts that the version presented by Ramos is
a true and correct copy of the one he was given, notwithstanding that he fails to actually
use the words ‘true and correct copy.’ ”
Because the Spanish translation Ramos received did not include an arbitration
provision, the trial court held that “by operation of . . . section 1632, . . . Westlake has
failed to establish the existence of an arbitration agreement enforceable against Ramos.”
As an alternative holding, the court held that “providing an English version of a contract
with an arbitration clause together with a translated version of the contract without such a
clause changes the unconscionability analysis so as to make the arbitration clause
unenforceable on that alternative ground.”
F. Westlake’s Motion for Clarification and the Subsequent Hearing
Westlake filed a motion for clarification of the trial court’s order denying its
motion to compel, inquiring whether the court’s section 1632 ruling meant the entire
English Contract was void or voidable, or only the arbitration agreement. Westlake also
sought to have the trial court explain why it found the arbitration agreement
unconscionable. The trial court denied the motion for clarification, but at the hearing
stated that its ruling permitted Ramos to make an election to declare the entire English
7
The trial court referred to each plaintiff’s underlying sales contract as a RISC—
an acronym for retail installment sales contract. Castillo’s and Vasquez’s contracts bore
that title. Ramos’s contract was entitled Conditional Sale Contract and Security
Agreement.
8
Contract void as a result of the section 1632 violation or to stand on the contract, but with
the unconscionable arbitration provision excised.
This appeal followed.
DISCUSSION
A. Trial Court’s Admission of the Ramos Translation
Westlake argues that the trial court erred in admitting the Ramos Translation over
Westlake’s foundation and authenticity objections, and that without a proper foundation
the trial court abused its discretion in determining that the Ramos Translation was the
Spanish translation Ramos received. We reject these contentions.
“When an appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as waived.” (Benach v.
County of Los Angeles (2007) 149 Cal.App.4th 836, 852; see also Howard v. American
National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523 [“Conclusory assertions of error
are ineffective in raising issues on appeal”].) That is the case with Westlake’s
evidentiary objections to the Ramos Translation. In its opening brief, Westlake does not
cite any Evidence Code sections or legal authority in support of these arguments. In
reply, Westlake makes a vague reference to “keystones of the evidentiary rules [that]
cannot be ignored” and cites Evidence Code sections 702, 1400, and 1401 in passing,
without more. Tellingly, these sections of the Evidence Code are not even listed in
Westlake’s Table of Authorities. (Cal. Rules of Court, rule 8.204(a)(1)(A) [appellate
briefs must “[b]egin with a table of contents and a table of authorities separately listing
cases, constitutions, statutes, court rules, and other authorities cited”].) Accordingly,
Westlake has waived its evidentiary objections to the Ramos Translation by failing to
adequately address them on appeal.
Were we to overlook Westlake’s failure to adequately raise these arguments, we
would reject them on the merits. Under Evidence Code section 1401, “[a]uthentication of
a writing is required before it may be received in evidence.” (Evid. Code, § 1401, subd.
(a).) To authenticate a writing, the proponent of the writing must introduce “evidence
sufficient to sustain a finding that it is the writing that the proponent of the evidence
9
claims it is.” (Evid. Code, § 1400.) There is no strict requirement as to how a party
authenticates a writing. (See Evid. Code, § 1410 [“Nothing in this article shall be
construed to limit the means by which a writing may be authenticated or proved.”].) “For
example, a writing can be authenticated by circumstantial evidence and by its contents.”
(People v. Skiles (2011) 51 Cal.4th 1178, 1187.) “A trial court’s finding that sufficient
foundational facts have been presented to support admissibility is reviewed for abuse of
discretion.” (People v. Smith (2009) 179 Cal.App.4th 986, 1001.)
The trial court did not abuse its discretion in admitting the Ramos Translation.
Ramos’s declaration and the contents of the Ramos Translation together provide
circumstantial evidence of its authenticity. The Ramos Translation contains the details of
Ramos’s automobile purchase and both Ramos’s signature and the signature of a
representative of Pena’s Motors on multiple pages. Westlake does not dispute that the
Ramos Translation is an accurate translation of the English Contract, with the exception
of the absence of the arbitration provision. The same form publisher appears to have
created both the Ramos Translation and the Westlake Translation. In fact, the Ramos
Translation is virtually identical in form, appearance, and language to the Westlake
Translation that Westlake admits it received from Pena’s Motors.8
Given the circumstantial evidence of authenticity, we conclude the trial court did
not abuse its discretion in admitting the Ramos Translation and finding, as a factual
matter, that the Ramos Translation was the Spanish translation Ramos received at the
time of the transaction.
8
Westlake’s contention that the Ramos Translation should have been excluded on
grounds of relevance, given that an “inference” can be drawn from Ramos’s declaration
that he read both the English Contract and its Spanish Translation at the time of the
vehicle purchase is absurd. Westlake’s objection rests upon the premise that Ramos
knew at the time of the vehicle transaction that the Spanish translation was different from
the English Contract. Nowhere in Ramos’s declaration, however, did Ramos state that he
compared the two agreements at the time he received them. To the contrary, Ramos
stated that he learned “[f]or the first time” from his attorney that he had purportedly
“agreed” to arbitrate his claims.
10
B. Whether an Arbitration Agreement Exists
On appeal, Westlake argues the trial court erred by finding that Westlake had not
demonstrated the existence of an agreement to arbitrate. Westlake contends that because
there is no dispute that Ramos signed the English Contract containing the arbitration
agreement, the only remedy available to Ramos for a violation of section 1632 is to
rescind the entire English Contract, not to excise the arbitration provision. We conclude
substantial evidence supports the trial court’s conclusion that Westlake failed to prove the
existence of an agreement to arbitrate. However, we reach this conclusion through
application of contract formation principles and not section 1632 and therefore need not
address Westlake’s arguments regarding the proper remedy under that statute.
1. Relevant Law
Code of Civil Procedure section 1281.2 provides that “[o]n petition of a party to
an arbitration agreement alleging the existence of a written agreement to arbitrate . . . the
court shall order the petitioner and respondent to arbitrate the controversy if it determines
that an agreement to arbitrate the controversy exists . . . .” Arbitration is a matter of
contract. (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59
(Avery).) “ ‘Even the strong public policy in favor of arbitration does not extend to those
who are not parties to an arbitration agreement[.]’ ” (Young v. Horizon West, Inc. (2013)
220 Cal.App.4th 1122, 1128.)
Thus, when presented with a motion to compel arbitration, the court’s first task is
to determine whether the parties have entered into an agreement to arbitrate their claims.
(Avery, supra, 218 Cal.App.4th at p. 59.) Courts “apply general California contract law
to determine whether the parties formed a valid agreement to arbitrate their dispute.” (Id.
at p. 60.) “General contract law principles include that ‘[t]he basic goal of contract
interpretation is to give effect to the parties’ mutual intent at the time of contract[.]”
(Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1170.) “Contract law
also requires the parties agree to the same thing in the same sense.” (Avery, supra, 218
Cal.App.4th at p. 60.) “The petitioner [seeking arbitration] bears the burden of proving
the existence of a valid arbitration agreement by a preponderance of the evidence, while a
11
party opposing the petition bears the burden of proving by a preponderance of the
evidence any fact necessary to its defense. [Citation.] The trial court sits as the trier of
fact, weighing all the affidavits, declarations, and other documentary evidence, and any
oral testimony the court may receive at its discretion, to reach a final determination.
[Citation.]” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842.)
“ ‘There is no uniform standard of review for evaluating an order denying a
motion to compel arbitration. [Citation.] If the court’s order is based on a decision of
fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the
court’s denial rests solely on a decision of law, then a de novo standard of review is
employed. [Citations.]’ ” (Avery, supra, 218 Cal.App.4th at p. 60, quoting Robertson v.
Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) “[W]hen ruling on a
petition to compel arbitration, the superior court may consider evidence on factual issues
such as contract formation bearing on the threshold issue of arbitrability. . . . On appeal
we must review the court’s factual ruling on arbitrability under the substantial evidence
test.” (City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 407.) “ ‘[W]e review the
trial court’s order, not its reasoning, and affirm an order if it is correct on any theory
apparent from the record.’ ” (Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563,
571, fn. 3.)
2. Discussion
It is undisputed that Ramos signed the English Contract and that this contract
contains an arbitration agreement. Ramos, however, argues that he was not aware that he
was entering into an arbitration agreement because “[t]he words ‘arbitration’ or
‘alternative dispute resolution’ never came up during Plaintiff’s discussions with the
dealership, and Plaintiff never saw the arbitration clause because it was hidden in the
English version of the RISC.” Although there is no evidence to contradict these facts,
typically these arguments would not be dispositive and a person would be bound by the
arbitration agreement he or she had signed. “ ‘No law requires that parties dealing at
arm’s length have a duty to explain to each other the terms of a written contract[.]’ ”
(Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1674.) Further, “ ‘one who
12
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.’ ” (Randas v. YMCA of Metropolitan
Los Angeles (1993) 17 Cal.App.4th 158, 163 (Randas), quoting 1 Witkin, Summary of
Cal. Law (9th ed. 1987) § 120, p. 145.)
The circumstances of this case, however, are not typical. Spanish, not English, is
Ramos’s primary language. When Ramos went to Pena’s Motors, he was greeted in
Spanish and the negotiations for the purchase of the automobile were conducted primarily
in Spanish. Pena’s Motors then provided Ramos with what purported to be a translation
of the English language contract he was about to sign. In his declaration, which was
prepared with the assistance of a Spanish translator, Ramos contended that he was not
aware that the English contract he signed on July 2, 2011, contained an arbitration
provision until he spoke with his attorney much later. All of these facts give rise to a
reasonable inference that Ramos has a limited ability to understand English. (NORCAL
Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 71 [“[W]e must presume the court
found every fact and drew every permissible inference necessary to support its judgment,
and defer to its determination of the credibility of witnesses and the weight of the
evidence.”].)9 The contract he ultimately signed, however, was in English.
Under the general contract principles just discussed, the fact that Ramos signed a
contract in a language he may not have completely understood would not bar
enforcement of the arbitration agreement. If Ramos did not speak or understand English
sufficiently to comprehend the English Contract, he should have had it read or explained
to him. (See Randas, supra, 17 Cal.App.4th at p. 163; see also 1 Williston on Contracts
(4th ed.) § 4:19 [“[O]ne who is ignorant of the language in which a document is written,
or who is illiterate [who] executes a writing proposed as a contract under a mistake as to
its contents . . . is bound.”]) Here, however, Ramos is not attempting to avoid the
9
In his brief on appeal, Ramos asserts that he is a “native Spanish speaker with a
limited ability to speak English.” His declaration before the trial court, however, does
not contain any express statement to this effect.
13
arbitration agreement because of his limited understanding of the English language.
Rather, he is relying on the fact that Pena’s Motors provided him with what purported to
be a Spanish translation of the English contract he was being asked to sign, a Spanish
translation which did not contain the arbitration agreement.
The trial court made a factual finding that the Ramos Translation was a “true and
correct copy of the one [Ramos] was given” and that “the Spanish language translation of
the RISC provided to Ramos at the time of the auto purchase transaction did not include
an arbitration provision.” As a result of its factual findings, the trial court concluded, “by
operation of . . . section 1632,” that Westlake “failed to establish the existence of an
arbitration provision.” We agree with the trial court’s ruling denying the motion to
compel arbitration but affirm on a different ground raised by Ramos, but not explicitly
addressed by the trial court: there was no mutual assent because the arbitration agreement
was hidden in the English Contract and not included in the Ramos Translation. This is a
claim of fraud in the execution (otherwise known as fraud in the inception) of the
arbitration agreement.10 We conclude that Westlake failed to establish an agreement to
arbitrate because it did not demonstrate the existence of mutual assent.
10
We treat Ramos’s fraud in the execution argument as a challenge to the
formation of the arbitration agreement specifically, and not to the English Contract as a
whole. The arbitration agreement is, in effect, its own contract contained within the
English Contract. In the English Contract, the arbitration provision is described as an
arbitration “agreement,” and it expressly states that “[t]his Arbitration Agreement
survives any termination, payoff or transfer of this Contract.” The arbitration agreement
also has its own severability clause as well as a provision allowing either party to
specifically reject it by “sending to the other a rejection notice by certified mail or by
messenger service within 10 days after signing this Contract.”
Treating the arbitration agreement as distinct from the contract as a whole finds
support in case law. For example, in Prima Paint Corp. v. Flood & Conklin Mfg. Co.
(1967) 388 U.S. 395, the United States Supreme Court addressed whether a “a claim of
fraud in the inducement of the entire contract is to be resolved by the federal court, or
whether the matter is to be referred to the arbitrators.” (Id. at p. 402.) The Supreme
Court held that, “if the claim is fraud in the inducement of the arbitration clause itself—
an issue which goes to the ‘making’ of the agreement to arbitrate—the federal court may
proceed to adjudicate it. But the [Federal Arbitration Act] does not permit the federal
14
A contract is void for fraud in the execution where “ ‘ “the fraud goes to the
inception or execution of the agreement, so that the promisor is deceived as to the nature
of his act, and actually does not know what he is signing, or does not intend to enter into
a contract at all.” ’ ” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th
394, 415 (Rosenthal).) In this instance, “ ‘ “mutual assent is lacking, and [the contract]
is void. In such a case it may be disregarded without the necessity of rescission.” ’ ”
(Ibid.) In a fraud in the execution case, “California law . . . requires that the plaintiff, in
failing to acquaint himself or herself with the contents of a written agreement before
signing it, not have acted in an objectively unreasonable manner. One party’s
misrepresentations as to the nature or character of the writing do not negate the other
party’s apparent manifestation of assent, if the second party had ‘reasonable opportunity
to know of the character or essential terms of the proposed contract.’ ” (Id. at p. 423).
Thus, a “party’s unreasonable reliance on the other’s misrepresentations, resulting in a
failure to read a written agreement before signing it, is an insufficient basis, under the
doctrine of fraud in the execution, for permitting that party to avoid an arbitration
agreement contained in the contract.” (Ibid.)11
court to consider claims of fraud in the inducement of the contract generally.” (Id. at pp.
403-404.) Further, in Mt. Holyoke Homes, L.P. v. Jeffer Mangels Butler & Mitchell, LLP
(2013) 219 Cal.App.4th 1299, the court rejected a claim of fraud in the execution of an
arbitration provision contained in a legal services agreement, holding that the defendants’
failure to explain the existence of the arbitration agreement did not “invalidate the
arbitration contract.” (Id. at p. 1309.) Mt. Holyoke Homes provides an example of a
court examining whether the arbitration agreement itself was secured through fraud in the
execution.
Because the fraud in the execution in this case only extends to the arbitration
agreement, our holding below does not affect the validity or enforceability of the English
Contract as a whole or any rights Ramos may have under it.
11
Ramos did not argue fraud in the execution in his Respondent’s Brief before us.
He did, however, raise this argument, and Rosenthal specifically, before the trial court.
Prior to oral argument, we issued a focus letter to the parties instructing them to be
prepared to address Rosenthal and the application of the fraud in the execution doctrine at
argument.
15
In Rosenthal, various individual investors in stock and bond funds sued a
brokerage firm and related bank alleging claims related to the purchase of securities. The
defendants moved to compel arbitration of all the plaintiffs’ claims. As to the allegations
brought by two of the plaintiffs, a mother and daughter with limited English skills, the
Supreme Court found that they had alleged facts which, if believed, would support a
finding of fraud in the execution of the defendant bank’s customer agreement that
included an arbitration agreement. The plaintiffs alleged that when they met with the
defendant’s representative, he began describing the challenged investment. The mother
told him that “she could not understand a lot of what he was saying because her English
was so poor.” (Rosenthal, supra, 14 Cal.4th at p. 427.) The plaintiffs allege that the
representative instructed the daughter to translate while he read a number of documents
to them. According to plaintiffs, the representative never mentioned arbitration. After
describing the documents, the bank representative allegedly told the plaintiffs they just
needed to sign the documents to open the account and that they just repeated what he had
stated. (Ibid.)
The Supreme Court held that plaintiffs had alleged sufficient facts to support a
finding of fraud in the execution: “In light of plaintiffs’ prior relationship with [the bank],
their limited ability to understand English, and [the representative’s] representations that
their oral recitals accurately reflected the terms of the agreements, plaintiffs would not
have been negligent in relying on the [the representatives] instead of reading the
agreements themselves.” (Rosenthal, supra, 14 Cal.4th at p. 428.) However, the court
recognized that a number of these facts—such as what the representatives actually
explained regarding the agreements and the extent to which the various plaintiffs could
understand English—were disputed. Accordingly, the Supreme Court remanded the case
to the trial court to permit it to resolve these factual disputes. (Id. at pp. 428, 430, 431.)
In the instant case, however, the sole factual issue raised by the parties involved
the question of which Spanish translation Ramos received. As discussed above, the trial
court resolved this factual dispute in favor of Ramos. Beyond this, Ramos’s declaration
is uncontradicted as Westlake failed to offer any declarations by a witness to the
16
underlying automobile transaction. The only declarations offered by Westlake were
authored by John Schwartz, a custodian of records for Westlake with no firsthand
knowledge of what occurred when Ramos bought a used automobile from Pena’s Motors.
Accordingly, there are no disputed facts that need to be resolved.
Under Rosenthal, the issue is whether, on these facts, Ramos’s reliance on the
Ramos Translation was reasonable. We hold that it was. By providing Ramos with a
document that purported to be the Spanish translation of the English Contract they were
asking him to sign, Pena’s Motors implicitly represented to Ramos that it was, in fact,
accurate. Ramos was entitled to rely on this representation. The Ramos Translation was
not just inaccurate. Rather, it completely omitted the arbitration agreement that Westlake
now seeks to enforce. By providing Ramos a translation that did not even reference
arbitration, let alone translate the terms of the arbitration agreement, Pena’s Motors
“deprived [Ramos] of a reasonable opportunity to learn the character and essential terms
of the [arbitration agreement he] signed.” (Rosenthal, supra, 14 Cal.4th at p. 428.)
Our holding that Ramos’s reliance on the Ramos Translation was reasonable is
supported by the existence of section 1632. As we detailed above, section 1632 requires
merchants to provide translations of certain contracts (including retail installment
contracts for automobiles) when those contracts are negotiated primarily in a foreign
language. (§ 1632, subd. (b).) The Legislature enacted the statute to “increase consumer
information and protections for the state’s sizeable and growing Spanish-speaking
population.” (§ 1632, subd. (a)(1).) The very purpose behind this provision is to ensure
that non-English speaking customers receive accurate information regarding the terms
and conditions of the contracts they are being asked to sign. Given this, it would be
anomalous to hold that Pena’s Motors was required to provide Ramos a translation of the
English Contract, but that under all of the facts of this case Ramos was not entitled to rely
on the accuracy of that translation.
Ramos reasonably relied on a Spanish translation of the English Contract that
Pena’s Motors provided him and that did not include the arbitration agreement.
Accordingly, mutual assent as to the arbitration agreement is lacking, it is void, and the
17
trial court correctly denied Westlake’s motion to compel arbitration. Because of our
holding, we need not address the parties’ arguments regarding the scope of section 1632’s
remedies or the trial court’s finding that the arbitration agreement was unenforceable due
to unconscionability.
DISPOSITION
The judgment of the trial court is affirmed.
_________________________
Miller, J.
We concur:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
18
Filed 11/24/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ALFREDO RAMOS,
Plaintiff and Respondent,
A141353
v.
WESTLAKE SERVICES LLC, (Alameda County
Super. Ct. No. RG13682419)
Defendant and Appellant.
BY THE COURT:
The opinion in the above-entitled matter filed on October 30, 2015, was not
certified for publication in the Official Reports. For good cause and pursuant to
California Rules of Court, rule 8.1105, it now appears that the opinion should be
published in the Official Reports, and it is so ordered.
Dated: _______________________ ________________________________
Richman, Acting P.J.
Trial Court: Superior Court of Alameda County
Trial Judge: Hon. Wynne Carvill
Attorney for defendant and appellant Joshua A. Gratch
Attorneys for plaintiff and respondent Parviz Darabi
Andrew G. Watters
Dnaiel B. Swerdlin