Ramos v. Westlake Servs. LLC

• Decision Date: 30 October 2015
• Docket Number: A141353
• Citation: 242 Cal.App.4th 674,195 Cal.Rptr.3d 34
• Parties: Alfredo RAMOS, Plaintiff and Respondent, v. WESTLAKE SERVICES LLC, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

242 Cal.App.4th 674

195 Cal.Rptr.3d 34

Alfredo RAMOS, Plaintiff and Respondent,

v.WESTLAKE SERVICES LLC, Defendant and Appellant.

A141353

Court of Appeal, First District, Division 2, California.

Filed October 30, 2015

Attorney for defendant and appellant Joshua A. Gratch

Attorneys for plaintiff and respondent Parviz Darabi Andrew G. Watters, Dnaiel B. Swerdlin

Miller, J.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 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 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 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 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, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (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 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...