Anderson v. Credit One Bank, National Association et al

Filing 16

ORDER Denying Defendant's #10 Motion to Compel Arbitration and to Stay. Signed by Judge Michael M. Anello on 05/22/2017. (ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 SOUTHERN DISTRICT OF CALIFORNIA Case No.: 16cv3125-MMA (AGS) RODGER DEAN ANDERSON, ORDER DENYING DEFENDANT’S MOTION TO COMPEL ARBITRATION AND TO STAY Plaintiff, v. CREDIT ONE BANK, NATIONAL ASSOCIATION, 15 [Doc. No. 10] Defendant. 16 17 18 Plaintiff Rodger Dean Anderson (“Plaintiff”) brings this action against Defendant 19 Credit One Bank, National Association (“Defendant” or “Credit One Bank”) alleging 20 three causes of action for: (1) violations of California’s Rosenthal Fair Debt Collection 21 Practices Act, California Civil Code § 1788 et seq.; (2) violations of the Telephone 22 Consumer Protection Act, 47 U.S.C. § 227 et seq.; and (3) intrusion. See Complaint. 23 Defendant moves to compel arbitration and stay this case pursuant to the Federal 24 Arbitration Act. See Doc. No. 10. Plaintiff filed an opposition, to which Defendant 25 replied. See Doc. Nos. 11, 12. The Court found the matter suitable for determination on 26 the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 27 13. For the reasons set forth below, the Court DENIES Defendant’s motion to compel 28 arbitration and to stay. -1- 16cv3125-MMA (AGS) 1 2 BACKGROUND Plaintiff, a resident of California, applied for a credit card online with Credit One 3 Bank. Upon approval, Credit One Bank mailed Plaintiff a credit card. The parties 4 dispute whether Defendant included its Cardholder Agreement, Disclosure Statement and 5 Arbitration Agreement in the same envelope as Plaintiff’s credit card. 6 Plaintiff activated his credit card in February 2015. See Doc. No. 10 at 6. Plaintiff 7 began using his credit card for personal and household purposes. Plaintiff closed his 8 credit card account in June 2015 “after paying off the remaining balance.” Complaint ¶ 9 15. Approximately four (4) months later, Credit One Bank began telephoning Plaintiff 10 and demanding payment. Complaint ¶ 16. However, Plaintiff notified Credit One Bank 11 that there was a $0.00 balance on his account. Complaint ¶ 16. Credit One Bank 12 informed Plaintiff that Plaintiff had not paid the annual card fee. See Complaint ¶ 17. 13 Plaintiff then paid the annual fee, but continued to receive phone calls from Credit One 14 Bank demanding payment for the annual credit card fee. Complaint ¶ 19. Plaintiff 15 contends Credit One Bank “continued making calls, frequently multiple times per day, in 16 an attempt to collect this debt from Plaintiff.” Doc. No. 11 at 6; see Complaint ¶ 20. 17 Plaintiff filed the instant action alleging Credit One Bank made these phone calls 18 in violation of California’s Rosenthal Debt Collection Practices Act and the Telephone 19 Consumer Protection Act, and that the collection calls were an intrusion into Plaintiff’s 20 privacy. Credit One Bank seeks to compel arbitration asserting Plaintiff “expressly 21 agreed” to Credit One Bank’s arbitration policy. Doc. No. 10 at 7-8. Plaintiff opposes, 22 contending that he never entered into an arbitration agreement with Credit One Bank. 23 24 LEGAL STANDARD The Federal Arbitration Act (“FAA”) permits “[a] party aggrieved by the alleged 25 failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration 26 [to] petition any United States District Court . . . for an order directing that . . . arbitration 27 proceed in the manner provided for in [the arbitration] agreement.” 9 U.S.C. § 4. Upon a 28 showing that a party has failed to comply with a valid arbitration agreement, the district -2- 16cv3125-MMA (AGS) 1 2 court must issue an order compelling arbitration. Id. The Supreme Court has stated that the FAA espouses a general policy favoring 3 arbitration agreements. AT & T Mobility v. Concepcion, 563 U.S. 333, 339 (2011). 4 Federal courts are required to rigorously enforce an agreement to arbitrate. See id. 5 Courts are also directed to resolve any “ambiguities as to the scope of the arbitration 6 clause itself . . . in favor of arbitration.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland 7 Stanford Jr. Univ., 489 U.S. 468, 476–77 (1989). 8 9 In determining whether to compel a party to arbitration, the Court may not review the merits of the dispute; rather, the Court’s role under the FAA is limited “to 10 determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether 11 the agreement encompasses the dispute at issue.” Cox v. Ocean View Hotel Corp., 533 12 F.3d 1114, 1119 (9th Cir. 2008) (internal quotation marks and citation omitted). If the 13 Court finds that the answers to those questions are “yes,” the Court must compel 14 arbitration. See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). If there is 15 a genuine dispute of material fact as to any of these queries, a district court should apply 16 a “standard similar to the summary judgment standard of [Federal Rule of Civil 17 Procedure 56].” Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796, 804 (N.D. Cal. 18 2004). 19 Agreements to arbitrate are valid, irrevocable, and enforceable, save upon such 20 grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. § 2. 21 Courts must apply ordinary state law principles in determining whether to invalidate an 22 agreement to arbitrate. Ferguson v. Countrywide Credit Indus., 298 F.3d 778, 782 (9th 23 Cir. 2002). As such, arbitration agreements may be invalidated by generally applicable 24 contract defenses, such as fraud, duress, or unconscionability. Concepcion, 563 U.S. at 25 339-41. 26 27 28 DISCUSSION 1. The Court May Consider Plaintiff’s Challenge to the Arbitration Agreement As an initial matter, Defendant contends that to the extent “Plaintiff asserts any -3- 16cv3125-MMA (AGS) 1 challenge to the existence of the arbitration agreement, that issue has been contractually 2 delegated to the arbitrator to decide.” Doc. No. 10 at 9 n.1. Defendant relies on Fischer 3 v. Rent-A-Ctr., Inc., 2014 WL 3729553, at *3-4 (E.D. Cal. July 24, 2014) in support of 4 this proposition. 5 Pursuant to the FAA, “parties can agree to arbitrate ‘gateway’ questions of 6 ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their 7 agreement covers a particular controversy.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 8 63, 68-69 (2010). “Because such issues would otherwise fall within the province of 9 judicial review, we apply a more rigorous standard in determining whether the parties 10 have agreed to arbitrate the question of arbitrability.” Momot v. Mastro, 652 F.3d 982, 11 987 (9th Cir. 2011). Therefore, “[u]nless the parties clearly and unmistakably provide 12 otherwise, the question of whether the parties agreed to arbitrate is to be decided by the 13 court, not the arbitrator.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 14 649 (1986). “Such [c]lear and unmistakable ‘evidence’ of agreement to arbitrate 15 arbitrability might include . . . a course of conduct demonstrating assent . . . or . . . an 16 express agreement to do so.” Momot, 652 F.3d at 988 (citation omitted). 17 “[A]rbitration is a matter of contract and a party cannot be required to submit to 18 arbitration any dispute which he has not agreed so to submit.” AT&T Techs., Inc., 475 19 U.S. at 648. Thus, “when one party disputes the ‘making of the arbitration agreement,’ 20 the Federal Arbitration Act requires that ‘the court [ ] proceed summarily to the trial 21 thereof’ before compelling arbitration under the agreement.” Sanford v. MemberWorks, 22 Inc., 483 F.3d 956, 962 (quoting 9 U.S.C. § 4). “The Ninth Circuit has interpreted this to 23 include challenges to the arbitration clause, as well as challenges to the making of the 24 contract containing the arbitration clause.” Doherty v. Barclays Bank Del., 2017 WL 25 588446, at *3 (S.D. Cal. Feb. 14, 2017) (citing Sanford, 483 F.3d at 962). 26 Here, Plaintiff challenges the existence of an agreement to arbitrate. Plaintiff 27 maintains he never received a copy of Defendant’s arbitration policy, and was never 28 notified of any such policy. See Doc. No. 11 at 10. Thus, the Court finds insufficient -4- 16cv3125-MMA (AGS) 1 evidence to conclude that the parties “clearly and unmistakably” agreed to arbitrate any 2 dispute. Additionally, Defendant’s reliance on Fischer is misplaced. The arbitration 3 agreement in Fischer included a provision which delegated authority to an arbitrator, 4 “and not any federal, state, or local court or agency,” to resolve any dispute relating to the 5 interpretation and enforceability of the agreement. 2014 WL 3729553, at *4. Unlike 6 Fischer, Defendant’s arbitration policy contains no similar provision delegating authority 7 solely to an arbitrator. Accordingly, the Court must proceed to determine whether a valid 8 contract to arbitrate exists. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 9 947 (1995) (“We conclude that, because the [plaintiffs] did not clearly agree to submit 10 the question of arbitrability to arbitration, the Court of Appeals was correct in finding that 11 the arbitrability of the . . . dispute was subject to independent review by the courts.”). 12 13 2. A Valid Arbitration Agreement Does Not Exist Defendant moves to compel arbitration arguing that Plaintiff’s claims, as set forth 14 in his Complaint, are subject to an arbitration agreement entered into between the parties. 15 See Doc. No. 10 at 1. Defendant submits three documents in support of its motion to 16 compel arbitration: (1) the declaration of Gary Harwood, Vice President of Portfolio 17 Services at Credit One Bank (Doc. No. 10-1, hereinafter “Harwood Decl.”); (2) an 18 electronic printout of Plaintiff’s online credit card application (Doc. No. 10-2, Exh. A); 19 and (3) an unsigned Cardholder Agreement, Disclosure Statement and Arbitration 20 Agreement (Doc. No. 10-3, Exh. B). Plaintiff contends the Court should deny 21 Defendant’s motion to compel arbitration because Plaintiff never received the Cardholder 22 Agreement attached to Defendant’s motion as Exhibit B, was unaware of an arbitration 23 agreement, and did not consent to any arbitration agreement. See Doc. No. 11 at 5. 24 25 26 27 28 “It is undisputed that under California law1, mutual assent is a required element of                                                 1 The Court notes that both parties cite to and rely upon California law in arguing the existence, or lack thereof, of an agreement to arbitrate. See Doc. Nos. 11 at 8, 12 at 3. However, although not mentioned by either party, the Cardholder Agreement, which encompasses the arbitration provisions, contains a choice of law provision designating Nevada law. See Doc. No. 10-3 at 5. Even if the Court -5- 16cv3125-MMA (AGS) 1 contract formation.” Doherty, 2017 WL 588446, at *3 (citing Knutson v. Sirius XM 2 Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014)); see also Restatement (Second) of 3 Contracts § 3 (“An agreement is a manifestation of mutual assent on the part of two or 4 more persons.”). “Only when there is no genuine issue of fact concerning the formation 5 of the agreement should the court decide as a matter of law that the parties did or did not 6 enter into such an agreement.” Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 7 925 F.2d 1136, 1141 (9th Cir. 1991). In determining whether there is a genuine issue of 8 fact concerning formation of an agreement, the party opposing arbitration shall receive 9 “the benefit of all reasonable doubt and inferences.” Id. 10 Here, factual disputes exist as to Plaintiff’s assent to the terms of the Credit One 11 Bank’s Cardholder Agreement, Disclosure Statement and Arbitration Agreement. Mr. 12 Harwood avers Credit One Bank mailed Plaintiff a copy of Credit One Bank’s 13 Cardholder Agreement, Disclosure Statement and Arbitration Agreement (attached as 14 Exhibit B) in the same envelope as Plaintiff’s new credit card for activation. Harwood 15 Decl. ¶ 6. Plaintiff declares, however, that his “credit card was not accompanied by any 16 other document.” Doc. No. 11-1 (hereinafter “Anderson Decl.”).2 Defendant further 17 asserts that Plaintiff’s use “of the credit card was Plaintiff’s outward manifestation of 18 consent to the Cardholder Agreement . . . .” Doc. No. 12 at 3. However, Plaintiff asserts 19 that aside from receiving his monthly statements, he never received the Cardholder 20 Agreement attached as Exhibit B, nor did Credit One Bank ever notify Plaintiff that he 21 22                                                 23 were to apply Nevada law, the Court would reach the same conclusion that no agreement to arbitrate exists. See Certified Fire Prot. Inc. v. Precision Constr., 283 P.3d 250, 255 (Nev. 2012) (“Basic contract principles require, for an enforceable contract, an offer and acceptance, meeting of the minds, and consideration. A meeting of the minds exists when the parties have agreed upon the contract’s essential terms.”) (internal citations and quotations omitted). 24 25 26 27 28 2 Defendant does not address Plaintiff’s declaration in its reply brief. In fact, Defendant claims “Plaintiff’s Opposition is unsupported by a declaration, and therefore, are arguments essentially made by Plaintiff’s counsel.” Doc. No. 12 at 2. To the contrary, Plaintiff attaches his own declaration in support of his Opposition to Defendant’s motion to compel as Doc. No. 11-1. -6- 16cv3125-MMA (AGS) 1 was bound to arbitrate disputes in connection with his credit card. Anderson Decl. ¶¶ 7- 2 9. Thus, in light of Plaintiff’s declaration to the contrary, Mr. Harwood’s declaration is 3 insufficient to show the absence of a genuine dispute of fact as to whether Plaintiff 4 received a copy of Defendant’s Cardholder Agreement, or whether Plaintiff assented to 5 its terms. Resolving all reasonable doubts in favor of Plaintiff, factual disputes exist as to 6 the existence of an arbitration agreement between the parties. See Three Valleys Mun. 7 Water Dist., 925 F.2d at 1141 (“The district court, when considering a motion to compel 8 arbitration which is opposed on the ground that no agreement to arbitrate had been made 9 between the parties, should give to the opposing party the benefit of all reasonable doubts 10 and inferences that may arise.”). 11 The remaining evidence Defendant submits is similarly insufficient to demonstrate 12 the parties’ mutual assent to the terms of the arbitration agreement. Exhibit A, an online 13 printout of Plaintiff’s credit card application, provides no information about Defendant’s 14 Cardholder Agreement, Disclosure Statement or Arbitration Agreement. See Doc. No. 15 10-2, Exh. A. Thus, Exhibit A sheds no light on Plaintiff’s alleged assent to the 16 arbitration agreement. Similarly, Exhibit B, a copy of Defendant’s Cardholder 17 Agreement, Disclosure Statement and Arbitration Agreement, is a standard form 18 agreement that does not bear Plaintiff’s signature. See Doc. No. 10-3, Exh. B. In the 19 absence of any additional information, Defendant presents insufficient evidence to show 20 the absence of a genuine dispute of fact as to the existence of an arbitration agreement. 21 See Smith v. Wells Fargo Bank, N.A., 15-CV-1890-W-JMA (S.D. Cal. Feb. 4, 2016) 22 (Doc. No. 10) (denying Wells Fargo Bank’s motion to compel arbitration where the 23 plaintiff claimed she never received any documentation along with her Wells Fargo credit 24 card notifying her of Wells Fargo’s arbitration policy). 25 Accordingly, the Court DENIES Defendant’s motion to compel arbitration and to 26 stay. Because Defendant has not met its burden of showing the absence of a genuine 27 dispute of fact as to the existence of an agreement to arbitrate, the Court need not reach 28 the issues of whether the arbitration provision set forth in Exhibit B encompasses -7- 16cv3125-MMA (AGS) 1 Plaintiff’s claims, or whether such provision is unconscionable. 2 3 4 5 CONCLUSION For the reasons set forth above, the Court DENIES Defendant’s motion to compel arbitration and to stay. IT IS SO ORDERED. 6 7 8 9 10 Dated: May 22, 2017 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- 16cv3125-MMA (AGS)

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