Narasimhan vs North County Buick

Opposition Other

Cal. Super. - 4th Dist.June 18, 2018

OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O Ajit Narasimhan, In Pro Per ELECTRONICALLY FILED 1879 Matin Circle, Unit 139 Superior Court of California, San Marcos, CA 92069 County of San Diego Tele: (714) 800-9508 08372018 at 02:20:00 PM Email: 2j300c @ymail.com Clerk of the Superior Court By Esperanza Femandez, Deputy Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO - NORTH (VISTA) AJIT NARASIMHAN, Plaintiff, Case No.: 37-2018-00030019-CU-BC-NC PLAINTIFF’S OPPOSITION TO DEFENDANT BCG, LLC’s MOTION TO COMPEL BINDING ARBITRATION AND STAY OF PROCEEDINGS VS. NORTH COUNTY BUICK, CADILLAC, GMC, AKA MY ESCONDIDO BCG, LLC; GENERAL MOTORS; And Does 1-75 Inclusive Date: October 5, 2018 Time: 10:30 a.m. Dept.: N-29 Judge: Hon. Ronald F. Frazier Amended Complaint Filed: June 27, 2018 Defendants N r N r N r N e N e N N N N N e N N COMES NOW Plaintiff Ajit Narasimhan ("Plaintiff"), and submits this Memorandum of Points and Authorities in Opposition to Defendant My Escondido BCG, LLC's ("BCG") Motion to Compel Binding Arbitration and conjunctive Motion to Stay the underlining proceedings (the "Motion"). The Motion should be denied, as further discussed herein. Plaintiff also is also requesting oral argument to present his opposition, as well as an order shortening time to hear this matter, or, in the alternative, to hear the matter on an expedited or ex-parte basis, as it is currently calendared for October 5, 2018. However, by that time; Plaintiff will be in irreparably harmed if the matter is stayed which shall be discussed herein. 1 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O INTRODUCTION AND PROCEDURAL HISTORY On April 27, 2018, Plaintiff purchased a 2017 Cadillac ATS from Defendant BCG, which thereafter was determined to have been in at least one major collision, in which is sustained structural damage. Plaintiff alleged in his First Amended Complaint ("FAC") that BCG knew about the accident damage but concealed it from and failed to disclose it to Plaintiff. On June 18, 2018, Plaintiff commenced the instant action. Plaintiff thereafter amended his complaint on June 27, 2018, and timely effectuated service on all Defendants in the action. The FAC is deemed as the operative complaint in this matter. Plaintiff was in the process of filing an application for entry of default, as Defendants’ answer(s) were due on August 6, 2018, however, was instead electronically served by counsel for Defendant the instant motion at hand. Plaintiff additionally notes to the Court that: (i) no meet and confer ever took place prior to defendant remitting the motion; (ii) no advance warning of a stay of proceedings was provided by counsel for defendant to Plaintiff, and; (iii) despite Defendant filing the motion, as of August 6, 2018, the entry was not on the docket and Plaintiff, though well within his rights to enter an application of default, instead refrained, and was intending upon calling defendant prior to defaulting it as a matter of professional courtesy. Plaintiff, as a pro se litigant should not have to remind counsel for defendant about professional courtesy, which should have been extended prior to the remitting of the motion. Nevertheless, for the reasons set below, binding arbitration is inapplicable in this matter, and Plaintiff prays that this Court deny the motion to compel arbitration and stay the proceedings. ARGUMENT A. Courts Have Discretion to Invalidate Unconscionable Arbitration Agreements Arbitration agreements are contracts. See Cal. Civ. Proc. Code § 1281 (“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.”’) When grounds “exist at law 2 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O or in equity for the revocation of any contract,” courts may decline to enforce such agreements. See Doctor’s Assocs, Inc. v. Casarotto (1996) 517 U.S. 681, 683; Ferguson v. Countrywide Credit Indus., Inc. (9th Cir. 2002) 298 F.3d 778, 782. Under California law, “[i]f the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.” Cal. Civ. Proc. Code § 1670.5(a) [Emphasis Added]. Even under federal law, which is applicable here due to the interstate commerce Defendant admits to in the Lehr Declaration, because arbitration agreements under the Federal Arbitration Act (“FAA”) are contracts, they are subject to the same defenses as any other contracts which include fraud, duress, unconscionability or other general contract law defenses. See AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, 1745-46. The Concepcion Court addressed the issue of whether arbitration agreements were valid. In fact, the U.S. Supreme Court in Concepcion stated explicitly that “[t]he final phrase of § 2 [of the FAA] however, permits arbitration agreements to be declared unenforceable ‘upon such grounds as exist at law or in equity for the revocation of any contract.” This saving clause permits agreements to arbitrate to be invalidated by ‘generally acceptable contract defenses, such as fraud, duress, or unconscionability.’” 131 S. Ct. at 1746. Moreover, a California appellate court rejected this precise argument in Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal. App.4th 1146, 1158 n.4: We invited the parties to provide their comments on the recent United States Supreme Court case, AT&T Mobility LLC v. Concepcion (2011) -U.S. - -, 131 S.Ct. 1740, 179 L.Ed.2d 742 (AT&T). Defendants appear to argue that AT&T essentially preempts all California law relating to unconscionability. We disagree, as the case simply does not go that far. General state law doctrine pertaining to unconscionability is preserved unless it involves a defense that applies “only to arbitration or that derive[s] [its] meaning from the fact that an agreement to arbitrate is at issue.” (Id. at p. - -, 131 S.Ct. at p. 1746.) This simply does not apply here. 3 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O B. Defendant’s Arbitration Provision Is Procedurally Unconscionable Procedural unconscionability focuses on “‘oppression’ or ‘surprise’ due to unequal bargaining power,” and concerns the manner in which the contract was negotiated and the parties’ circumstances at that time. See Armendariz, 24 Cal.4th at 113-14. This element is generally satisfied if the agreement constitutes a contract of adhesion. See Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal. App. 4th 1267, 1280. “The oppression component arises from an inequality of bargaining power . . . and an absence of real negotiation or a meaningful choice on the part of the weaker party.” Id. at 1281. “When the weaker party is presented the clause and told to ‘take it or leave it” without the opportunity for meaningful negotiation, oppression, and therefore procedural unconscionability, are present.” Szetela v. Discover Bank (2002) 97 Cal. App.4th 1094, 1100. A “meaningful opportunity” to negotiate or reject the terms of a contract requires, at a minimum, that a party have “reasonable notice of (the) opportunity to negotiate or reject the terms of a contract, and . . . an actual, meaningful, and reasonable choice to exercise that discretion.” Circuit City Stores, Inc. v. Mantor (9th Cir. 2003) 335 F.3d 1101, 1106. While Defendant claims that, "Plaintiff unequivocally consented to the Arbitration Provision with full knowledge of its existence and contents." [Motion Pg. 5425-27] This is simply untrue. There was no "full knowledge of its contents, as alleged and supported by the two (2) declarations remitted which paint a very vague indication as to the arbitration provision in the pre-printed sales contract. The matter of Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77,7 Cal.Rptr.3d 267 is deemed as the controlling authority on procedural and substantive unconscionability, and, the Gutierrez holding is applicable here as it deals directly with a consumer Plaintiff against an automotive dealership. Further, Cal. Civ. Proc. Code section 1670.5, subdivision (a) provides, in pertinent part, that a contract clause found to be unconscionable is unenforceable, unless the court severs the clause or so limits its 4 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O application as to avoid any unconscionable result. Under this statute, a court may not refuse to enforce a contract clause unless it determines that the clause is both procedurally and substantively unconscionable. Armendariz, supra, 24 Cal.4th at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669; A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486-487, 186 Cal. Rprt. 114. The procedural element Plaintiff alleges applies here focuses on “oppression” or “surprise.” (A & M Produce, supra, 135 Cal.App.3d at pp. 486, 491, 186 Cal. Rptr. 114; accord, Armendariz, supra, 24 Cal.4th at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669.) Where the parties to a contract have unequal bargaining power and the contract is not the result of real negotiation or meaningful choice, it is oppressive. [Emphasis Added]. “Surprise” is defined as “the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms.” (Armendariz, at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669; Stirlen v. Supercuts, Inc. (1997) 51 Cal. App.4th 1519, 1532, 60 Cal.Rptr.2d 138; A & M Produce, at p. 486, 186 Cal. Rptr. 114.) “The procedural element of an unconscionable contract generally takes the form of a contract of adhesion.” Little v. Auto Stiegler (2003) 29 Cal.4th 1064, 1071, 130 Cal.Rptr.2d 892, 63 P.3d 979; see Fittante v. Palm Springs Motors, Inc. (2003) 105 Cal. App.4th 708, 721, 129 Cal.Rptr.2d 659; Flores v. Transamerica HomeFirst, Inc. (2001) 93 Cal. App.4th 846, 853, 113 Cal.Rptr.2d 376. An adhesive contract is defined as * ‘a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” Armendariz, at p. 113, 99 Cal.Rptr.2d 745, 6 P.3d 669. Though courts refuse to enforce only those agreements that are both procedurally and substantively unconscionable, the two factors need not each exist to the same degree. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” Armendariz, supra, 24 Cal.4th at p. 5 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O 114, 99 Cal.Rptr.2d 745, 6 P.3d 669. As such, the Motion should be denied, and the proceedings should not be stayed. C. Defendant’s Arbitration Provision Is Indeed A Contract of Adhesion First, it is undisputed that the arbitration provision relied on by Defendant is buried in pre-printed, standardized contracts created by Defendant and imposed on Plaintiff without any opportunity for discussion or negotiation. Defendant's remitted exhibit abundantly proves this. Defendant’s arbitration provision constitutes a per se contract of adhesion: “Procedural unconscionability turns on adhesiveness - a set of circumstances in which the weaker or ‘adhering’ party is presented a contract drafted by the stronger party on a take it or leave it basis.” Mercuro v. Superior Ct. (2002) 96 Cal.App.4th 167, 174. Here, Plaintiff had no opportunity to review the documents, including the arbitration agreement, or to consult with an attorney prior to signing them, in direct contradiction to the Declaration of Omar Stewart. Mr. Stewart, the finance manager for Defendant, remitted a bare bones Declaration in support of Defendant's motion. Specifically, the Declaration presents an extremely contorted picture to the court. "I also directed Mr. Narasimhan to read the provision entitled "'Agreement to Arbitrate" on the front of the contract and explained this referenced an arbitration agreement with the dealership that would submit any disputes to an arbitrator and not a court. I witnessed Mr. Narasimhan read the section that states [Stewart Decl., |] 3-6.] Agreement to Arbitrate: By signing below, you agree that, pursuant to the Arbitration Provision on the reverse side of this contract, you or we may elect to resolve any dispute by neutral, binding arbitration and not by a court action. See the Arbitration Provision for additional information concerning the agreement to arbitrate. The Declaration raises more questions than answers. Did Mr. Stewart personally know, or have knowledge as declared if Plaintiff was reading the section, or another? How was Plaintiff "directed" to read the provision as declared? And how does one "direct" and have "personal knowledge" of what an individual is purportedly reading or thinking? 6 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O The answer to these questions can only be ascertained through proper discovery, a substantial deposition of Mr. Stewart in which he would be questioned as to what he actually saw, versus what his employer's counsel dictated that he saw, and the provision(s) themselves would be scrutinized. Plaintiff alleges that he had no opportunity to negotiate the admitted pre-printed sections of the contract. Furthermore and described herein, there will be no discovery as noted in the arbitration clause, therefore this critical and crucial information which is needed to establish any of the above noted cases would be incomplete if the arbitration provision is enforced. As such, the contract is one of adhesion - and therefore exempt from arbitration, and thus, the motion should be denied, and the proceedings should not be stayed. D. Defendant's Case Law Remitted is Not on Point As a preliminary matter, in its moving papers, Defendant attempts to stretch and contort the California Supreme Court’s decision in Sanchez v. Valencia Holding Co., LLC, 61 Cal.4th 899, 906-907 (2015) to somehow apply to Plaintiff's case. This misguided attempt to contort the Sanchez holding with the instant case at bar is dubious at best. Under Defendant’s theory, all arbitration agreements are now enforceable in California under the FAA no matter how unconscionable they may be. Of course, this is not the law. The Sanchez holding is vastly different from the allegations in Plaintiff's Amended Complaint, which makes the holding irrelevant in these proceedings. Specifically, the Sanchez Complaint alleged: (1) violations of the Consumers Legal Remedies Act (CLRA) (Cal. Civ. Proc. Code §§ 1750-1784); (ii) the Automobile Sales Finance Act (ASFA) (Cal. Civ. Proc. Code §§ 2981-2984.6); (iii) the unfair competition law (UCL) (Bus. & Prof. Code, §§ 17200-17210); and the California Tire Recycling Act. Furthermore, the Sanchez matter directly involved a class action allegation, whereas Plaintiff's Complaint does not involve or allege any class action violations. As Defendant hangs its hat and basis for the Motion on the Sanchez holding, it is imperative that this Court look at cases which are on point and not misguided attempts to twist a holding to suit the Defendant's narrative. As such, the Motion should be denied, and the proceedings should not be stayed. 7 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O E. Plaintiff is Not Bound to Arbitrate Fraud Claims Defendant, while insisting on binding arbitration in this matter, conveniently omits that Plaintiff's causes of action include those for Misrepresentation, both intentional and negligent. Further, the Amended Complaint clearly cites the basis for the causes of action as being induced by Fraud, which is not subject to arbitration. Specifically: "At the time Plaintiff purchased the 2017 Cadillac ATS he did not know, or have reason to know, that BCG was making false and misleading representations and had omitted material facts. Plaintiff acted in justifiable reliance upon the truth of the representations which misled him as to the nature and extent of the facts concealed. Plaintiff was justified in his reliance, as BCG held itself out as professionals in the automotive sales industry, and Plaintiff had no reason to doubt such representations... BCG committed fraud in the inducement of the purchase contract for the 2017 Cadillac ATS, and Plaintiff is therefore entitled to rescission and restitution in an amount according to proof at trial." [Amended Complaint J 76-81]: Indeed, even the U.S. Supreme Court, in the matter of Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2006), held that a trial Court may adjudicate the matter even if the matter itself is subject to arbitration. Specifically, the Supreme Court stated: "The issue in the case was “whether 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 402, 87 S.Ct. 1801. Guided by § 4 of the FAA, we 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." [Bold Emphasis Added]. As the Amended Complaint heavily alleges misrepresentation, and fraud in the inducement, the alleged arbitration provisions remitted by the Defendant is not conducive with binding Supreme Court precedent. As such, the Motion should be denied, and the proceedings should not be stayed. F. California Courts Have Consistently Ruled on Unconscionable Arbitrations Absent Class Actions California Courts have ruled consistently on unconscionable arbitration clauses which are brought individually, and not by a class action. For example, in the matter of Norton v. Ford of Santa Monica et 8 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS p - al., 2012 WL 6721400 (Cal. App. 2 Dist. 2012), the Court of Appeal for the Second District, found in an unpublished decision that defendant Ford of Santa Monica's motion to compel arbitration was procedurally and substantively unconscionable. As to procedural unconscionability, the Court of Appeal found: © 0 IN O N Un Br W N N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O The vehicle purchase contract contains elements of surprise. Placement of the arbitration agreement was inconspicuous, on the reverse of the page that Norton signed. Although he was required to sign the first page of the vehicle purchase contract seven times, he was not required to sign or initial the arbitration clause on the reverse side. There was actual surprise because of SSM’s failure to call the arbitration clause to the attention of its customer. A & M Produce Co. Supra 135 Cal.App.3d 473, 490. Under these circumstances, the arbitration clause was procedurally unconscionable. Ibid, Gutierrez Supral 14 Cal.App.4th 77, 89. Because the vehicle purchase contract contained an element of surprise, the contract was procedurally unconscionable. [Emphasis Added] As to substantive unconscionability, the Court of Appeal found: Although superficially bilateral insofar as in some circumstance, each party is provided a method for requesting a new arbitration after an arbitrator’s award, this provision of the arbitration agreement has the effect of benefiting the party with superior bargaining power, the automobile dealer. A car buyer does not benefit from a provision allowing the dealership to seek a new arbitration of an award of more than $100,000 because the buyer, not the dealer, will be the party more likely to recover an award of that size. If the buyer obtains an award under the $100,000 threshold but believes it is too low, the buyer has no option to request a new arbitration unless the award is $0. Therefore in practical terms, this provision makes a new arbitration available only to the dealer. Additionally, this arbitration provision requiring the party requesting a new arbitration to advance filing fees and arbitration costs is unconscionable because it allows a financially strong automobile dealership to request a new arbitration while discouraging or preventing a cash-strapped consumer from doing so. In the trial court, Norton’s declaration stated that arbitrators typically charged hundreds of dollars per hour, and that if SSM lost it could request a new arbitration with a three-arbitrator panel and that Norton could be responsible for all the costs of those three arbitrators if he did not win that new arbitration. Norton stated that he was not financially able to pay such potential arbitration fees. This was sufficient evidence of the amount of filing fees and other costs for a new three-arbitrator arbitration, and that this amount would exceed plaintiffs ability to pay. (Gutierrez, supra, 114 Cal. App.4th at p. 90.) Gutierrez holds that it is substantively unconscionable to require a consumer to give up the right to utilize the judicial system while imposing prohibitively high arbitral forum fees. (Gutierrez, supra, 114 Cal.App.4th at p. 90.) Gutierrez also found that despite the potential for imposition of a substantial administrative fee on plaintiff, the arbitration agreement had no effective procedure for a consumer to obtain a fee waiver or reduction. Gutierrez found that the arbitration agreement must 9 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O provide some effective avenue of relief from unaffordable fees and that the arbitration agreement before it did not do so. (Id. at pp. 91-92.) The absence of any procedure for a consumer to obtain a fee waiver or reduction or of some effective avenue of relief from unaffordable fees makes the arbitration agreement in the SSM-Norton vehicle purchase contract substantively unconscionable. [Emphasis Added] As such, the Motion should be denied, and the proceedings should not be stayed. G. Defendant Delayed in Bringing its Motion Thereby Waiving its Right Plaintiff has been readily available to meet with, discuss, and resolve this matter since at least May, 2018, as evidenced by the numerous email exchanges, face-to-face meetings, as well as phone calls. Defendant had every possible avenue by which to attempt to enforce the alleged arbitration provision prior to Plaintiff bringing suit. Notwithstanding this, Defendant waited until the proverbial "1 1" hour" to bring the Motion, and failed to remit a demand for arbitration to Plaintiff, let alone a mere phone call or email to inform him that Defendant would seek a stay of the proceedings. Defendant could have elected to demand arbitration in the month(s) of May, June, and July 2018, however, failed to do so, thereby prejudicing Plaintiff and waiving its right to now demand arbitration.’ As Plaintiff's lawsuit is the one avenue keeping Defendant General Motors from repossessing the vehicle, and tanking Plaintiff's credit in the process, staying the proceedings by way of a last minute filing, is not in the spirit of openness, candor and good faith within the scope and meaning of the FAA, not to mention Defendant providing any semblance of professional courtesy to Plaintiff. Plaintiff has no adequate remedy at law, should the proceedings be stayed due to the last minute filing by out of state counsel. Indeed, the right to compel arbitration arises from the parties’ alleged contract and, as with other contractual rights, is subject to waiver. Such waiver may be express or implied from the parties’ conduct. See Cal. Civ. Proc. Code § 1281.2. Waiver of the right to arbitrate “does not require a voluntary relinquishment of a known right . . .” Burton v. Cruise (2010) 190 Cal. App.4th 939, 944. Generally, when a party seeks to ! Davis v. Blue Cross (1979) 25 Cal.3d 418, 425 10 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O establish a claimant has waived its right to arbitrate, it must demonstrate: (i) knowledge of an existing right to compel arbitration; (ii) acts inconsistent with that existing right, and; (iii) prejudice to the party opposing arbitration. U.S. v. Park Place Assocs. (9th Cir. 2009) 863 F.3d 907, 921. As noted above, Plaintiff meets each of the metrics established to demonstrate to the Court that Defendant waived its right to arbitrate by: (i) waiting until Plaintiff had no adequate remedy of law; (i1) defendant having knowledge of its right to compel, and failing to do so for more than four months’ time; (iii) failing to demand arbitration when Defendant clearly had more than ample time to do so, and; (iv) plaintiff being severely prejudiced by this untimely filing. As such, the Motion should be denied, and the proceedings should not be stayed. H. Lack of Discovery Supports Plaintiff's Opposition Here, two aspects of Defendant’s arbitration provision are substantively unconscionable. First, the arbitration provision restricts Plaintiffs’ right to discovery. As noted above, the concurrently filed Declarations by Defendant are bare, open ended and subject to discovery. Plaintiff has demonstrated the questions which only proper discovery can unveil. However, Defendants appears uninterested in judicial fairness, including the discovery process all litigants are entitled to. Rather than providing for discovery explicitly in the arbitration agreement, the Defendant's arbitration provision hands over the scope of discovery entirely to the discretion of the arbitrator. Needless to say, discovery at the discretion of an arbitrator differs substantially from a litigant’s broad discovery rights in state court. Plaintiff does not even know what discovery, if any, he would be entitled if this matter is compelled to arbitration. In fact, the provision is so ambiguous it is unclear if any discovery would even take place. As noted by Defendant: DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN A COURT MAY NOT BE AVAILABLE IN ARBITRATION (Motion Pg. 3 { 3[clause].) Courts have routinely held that the absence of the express provision for discovery rights renders arbitration agreements unconscionable. See Armendariz, 24 Cal.4th at 113; Sparks v. Vista Del Mar, 207 11 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O Cal.App.4th at 1523; Fitz v. NCR Corporation, 118 Cal.App.4th at 715 (“Adequate discovery is essential for vindication of statutory claims.”).Specifically, the Sparks court held that the arbitration provision was substantively unconscionable because, like here, the provision required the party to relinquish statutory administrative and judicial rights, and because there was no express provision for discovery. See 207 Cal.App.4th at 1523. Second, the burdens imposed on Plaintiff to pay the arbitration fees and costs render the provision substantively unconscionable. Defendant contends in its moving papers that, under the arbitration provision, “The Arbitration Provision also requires Defendant to pay for Plaintiff’s filing, administration, service or case management and arbitrator fees up to $5,000, which may be “reimbursed in whole or in part by decision of the arbitrator if the arbitrator finds that any of your claims is frivolous under applicable law.” 1d. Regarding attorney and expert fees, the parties bear their own unless the arbitrator awards otherwise under applicable law. Id. (Motion. Pg. 41) By this logic and rationale, Plaintiff would be advanced costs by Defendant; however, in the event he is the "losing party", he would then be stuck with the arbitration bill, which, by the time the award is decided, could be in the tens of thousands. Plaintiff does not have that type of monies available, and in fact had his Court filing fees waived due to his current financial condition. To pull a double whammy by staying the proceedings and forcing Plaintiff to pay out of pocket costs in the event he loses at arbitration is unconscionable. Indeed, “[P]rovisions of arbitration agreements unduly advantageous to one party at the expense of the other will not be judicially enforced.” Stirlin v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1541. Given the overwhelming evidence of procedural unconscionability, only a minimal showing of substantial unconscionability is required to invalidate the arbitration provision. Plaintiff has demonstrated the one-sided nature of the alleged arbitration provision Defendant is attempting to use above. As such, the Motion should be denied, and the proceedings should not be stayed. 12 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS OO 0 N N Ln BA W N = N N N N N N N N N mm e m e m e m e m e m e m e m c o I O N Ln BA W N Y = DO VU N N N N R E W L W N D Y = O I. The Arbitration Provision Is Permeated With Unconscionability And Cannot Be Cured Where, as here, an arbitration agreement that contains numerous unconscionable provisions, severance cannot save it. The Armendariz Court noted that a court’s power to reform an arbitration agreement is “limited to instances in which parties make mistakes, not to correct illegal provisions.” 24 Cal.4th at 125. The Armendariz Court stated that “if the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced” Id. at 124. Here, the number of unconscionable provisions permeating Defendant’s arbitration provision, coupled with the high degree of established procedural and substantive unconscionability, clearly illustrates a systematic effort by Defendant to gain an advantage over Plaintiff through the arbitration provision, notwithstanding the non-agreement to arbitrate Fraud. Accordingly, the arbitration provision is irreparably tainted, cannot be reformed by severing the numerous unconscionable provisions, and is therefore unenforceable. As such, the Motion should be denied, and the proceedings should not be stayed. CONCLUSION For the foregoing reasons, Plaintiff respectfully request that the Court deny the Motion to compel arbitration and for a stay of the instant proceedings. Plaintiff also specifically requests oral argument, and that the hearing be expedited or heard on shortened notice, due to the emergent "likelihood of irreparable harm" as noted above, and for any such other relief as may be afforded at this time. Respectfully submitted this 13™ day of August 2018 /s/ Ajit Narasimhan Ajit Narasimhan, In Pro Per 1879 Matin Circle, Unit 139 San Marcos, CA 92069 Tele: (714) 800-9508 Email: 2j300c @ymail.com 13 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS