Nienstadt v. Vitucci
Filed 11/22/10 Nienstadt v. Vitucci CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| WYBA C. NIENSTADT, individually and as Trustee, etc., et al., Plaintiffs and Respondents, v. PASQUALE VITUCCI et al., Defendants and Appellants. | F059184 (Super. Ct. No. 633023) OPINION |
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge.
Edgerton & Weaver, Chad Weaver, Matthew David Klafter; Bingham McCutchen, Donald S. Davidson, Robert A. Brundage, Kevin J. Woods and Kate Karas for Defendants and Appellants.
Stanzler Law Group, Jordan S. Stanzler and Melinda Jane Steuer for Plaintiffs and Respondents.
-ooOoo-
This appeal concerns the enforceability of agreements to arbitrate disputes between plaintiff investors and defendants who were their financial advisors and broker-dealer. The trial court denied defendants' petition to compel arbitration, finding the arbitration provision was not enforceable. Defendants appealed, claiming all the reasons given by the court for its decision were incorrect as a matter of law.
We conclude that substantial evidence supports the trial court's implied finding of fact that the form containing the arbitration provision was not readily available to plaintiffs at or before the time they signed the document that attempted to incorporate the arbitration provision by reference. As a result, the arbitration provision was not validly incorporated by reference and, thus, did not become part of an enforceable contract. Consequently, the order denying arbitration will be affirmed.
FACTS
Plaintiffs in this action are Mickey G. Fink and Elaine M. Fink, who are husband and wife, and Wyba C. Nienstadt. When this lawsuit was filed, Nienstadt was 83 years old and Mickey and Elaine Fink were 79 and 70 years old, respectively. During the time relevant to this lawsuit, Elaine Fink was legally blind and unable to read forms.
The defendants are Pasquale â€
| Description | This appeal concerns the enforceability of agreements to arbitrate disputes between plaintiff investors and defendants who were their financial advisors and broker-dealer. The trial court denied defendants' petition to compel arbitration, finding the arbitration provision was not enforceable. Defendants appealed, claiming all the reasons given by the court for its decision were incorrect as a matter of law. We conclude that substantial evidence supports the trial court's implied finding of fact that the form containing the arbitration provision was not readily available to plaintiffs at or before the time they signed the document that attempted to incorporate the arbitration provision by reference. As a result, the arbitration provision was not validly incorporated by reference and, thus, did not become part of an enforceable contract. Consequently, the order denying arbitration will be affirmed. |
| Rating |
