FISHER v. DCH TEMECULA IMPORTS LLC Part-I
<script src="http://www.google-analytics.com/urchin.js" type="text/javascript"> </script> <script type="text/javascript"> _uacct = "UA-1698443-1"; urchinTracker(); </script> <html ><br /> <head><br /> <title>FISHER v</title><br /> </head><br /> <body><br /> <div><br /> <br/><b >FISHER v. DCH TEMECULA IMPORTS LLC</b><br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/>Filed 8/13/10<br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/><b >CERTIFIED FOR PUBLICATION</b><br /> <br/> <br /> <br/><b >IN THE COURT OF APPEAL OF THE STATE OF </b><b<br /> >CALIFORNIA</b><b<br /> ></b><br /> <br/><b > </b><br /> <br/><b >FOURTH APPELLATE DISTRICT</b><br /> <br/><b > </b><br /> <br/><b >DIVISION TWO</b><br /> <br/> <br /> <br/> <br /> <br/> <br /> <table class=MsoNormalTable border=0 cellspacing=0 cellpadding=0<br /> ><br /> <tr ><br /> <td width=319 valign=top ><br /> <br/>AMBERLEE FISHER,<br /> <br/> <br /> <br/> Plaintiff<br /> and Respondent,<br /> <br/> <br /> <br/>v.<br /> <br/> <br /> <br/>DCH TEMECULA IMPORTS LLC,<br /> <br/> <br /> <br/> Defendant<br /> and Appellant.<br /> <br/> <br /> </td><br /> <td width=319 valign=top ><br /> <br/> <br /> <br/> <br /> <br/> E047802<br /> <br/> <br /> <br/> (Super.Ct.No.<br /> RIC505227)<br /> <br/> <br /> <br/> <b<br /> >OPINION</b><br /> <br/> <br /> </td><br /> </tr><br /> </table><br /> <br/> <br /> <br/> APPEAL from the Superior<br /> Court of Riverside<br /> County. Mac R. Fisher, Judge. Affirmed.<br /> <br/> Manning, Leaver, Bruder &<br /> Berberich, Christian J. Scali and Wade R. Kackstetter for Defendant and<br /> Appellant.<br /> <br/> Jonathan Morrison for California New<br /> Car Dealers Association as Amicus Curiae on behalf of Defendant and Appellant.<br /> <br/> Rosner, Barry & Babbitt, Hallen<br /> D. Rosner and Christopher P. Barry for Plaintiff and Respondent.<br /> <br/> Defendant DCH Temecula Imports LLC<br /> (DCH) appeals the denial of its petition to compel arbitration. The trial court found that an arbitration clause in a retail<br /> installment sales contract (RISC) for the sale of a car to plaintiff Amberlee<br /> Fisher, which included a waiver of the right to bring a class action lawsuit or<br /> request classwide arbitration, was unenforceable. <br /> <br/> Fisher presented several theories to<br /> the trial court in opposition to the enforcement of the arbitration clause,<br /> including that the arbitration clause required her to waive an unwaivable statutory right to bring a class action<br /> lawsuit under the California Legal Remedies Act (the CLRA) and that the<br /> arbitration agreement was both procedurally and substantively unconscionable.<br /> <br/> We uphold the trial court's denial<br /> of the petition to compel arbitration.<br /> <br/>I<br /> <br/>FACTUAL AND PROCEDURAL BACKGROUND<br /> <br/> A. <i<br /> >Fisher's Complaint</i><br /> <br/> On July 29, 2008, Fisher filed her complaint for injunctive relief, restitution, rescission,<br /> and damages both on her own behalf and as a class action lawsuit. Fisher defined the class as those who purchased<br /> a vehicle from DCH from July 28, 2003, to then present, and (1) after signing<br /> an RISC, DCH rescinded the original RISC and had the consumer sign a subsequent<br /> RISC for the same vehicle, but the new contract was dated the date of the<br /> original purchase contract and involved financing at an annual percentage rate<br /> greater than 0.00%, and/or (2) who executed an RISC for the purchase of a<br /> vehicle for personal use where registration and licensing fees were not<br /> properly disclosed on a separate line in the contract as required. <br /> <br/> As for Fisher's individual claims,<br /> she alleged that in August 2007 she agreed to purchase a used 2004 Dodge Neon<br /> from DCH. She was advised the vehicle<br /> had been through a thorough inspection and was a safe vehicle. It was not disclosed that it had previously<br /> been used as a daily rental vehicle. She<br /> further alleged that her RISC did not separately itemize the license and<br /> registration fees. <br /> <br/> According to the allegations in the<br /> complaint, Fisher began having problems with the vehicle. In the meantime, she was contacted by DCH and<br /> informed she had to sign a new RISC. <br /> Fisher refused, but DCH threatened to repossess her vehicle if she did<br /> not. She signed a new RISC, which<br /> provided for a new finance company. The<br /> contract she signed on August 14, 2007,<br /> was backdated to August 7, 2007.<br /> <br /> <br/> Fisher listed six causes of action<br /> for the class, including violation of the CLRA and Civil Code sections 1750 and<br /> 1780, subdivision (a)(2) for backdating contracts; violation of the CLRA and<br /> Civil Code sections 1750, subdivision (a) and 1770, subdivision (a) for<br /> improperly designating license and registration fees; violation of the<br /> Automobile Sales Finance Act (the ASFA) and Civil Code section 2981 for<br /> backdating the second sales contract; violation of the ASFA and Civil Code<br /> section 2981 for improperly designating license and registration fees;<br /> commission of unlawful, unfair, and/or fraudulent business practices and violation of<br /> Business and Professions Code section 17200 for backdating the second sales<br /> contracts; and commission of unlawful, unfair, and/or fraudulent business<br /> practices and violation of Business and Professions Code section 17200 for<br /> failing to properly designate license and registration fees. <br /> <br/> Fisher listed four additional<br /> individual causes of action, including negligent misrepresentation of the<br /> condition and inspection of the Neon; intentional misrepresentation of the<br /> condition of the Neon, the terms of the contract, and repossession rights; violation<br /> of the CLRA and Civil Code section 1750 for misrepresentation of the Neon's<br /> condition and inspections; and violation of the Song-Beverly Consumer Warranty<br /> Act and Civil Code section 1790 for delivering a vehicle with serious defects<br /> and nonconformities with warranties.<br /> <br/> In her prayer for relief, Fisher<br /> requested, among other amounts, rescission and/or restitution on of all monies<br /> required to be expended by her and the class, plus injunctive relief on the<br /> individual and class claims. <br /> <br/> B. <i<br /> >DCH's Petition for Order Compelling<br /> Arbitration</i><br /> <br/> On December 1, 2008, DCH filed its<br /> notice of petition and petition for orders compelling binding contractual<br /> arbitration, severing injunctive relief claims if inarbitrable, staying or<br /> dismissing proceedings pending arbitration, and staying injunctive relief<br /> claims pending arbitration if inarbitrable (petition to compel<br /> arbitration). According to the petition<br /> to compel arbitration, DCH had demanded that Fisher enter into binding arbitration<br /> prior to filing the complaint, but she had refused. <br /> <br/> The binding arbitration clause<br /> appeared in a box on the back of the agreement in both the first and second<br /> RISC that Fisher signed. The page on<br /> which it appeared was neither signed nor initialed. In bold letters it stated, â€