In Cardenas v. AmeriCredit Financial Services Inc., 2010 WL 3619851 (N.D.Cal. 2010), the Plaintiffs sued to prevent the Defendant from collecting further based on a purportedly defective NOI letter. Plaintiff filed a class action against the defendant, alleging claims for (1) violation of the UCL, which, in turn, is predicated on a violation of Rees-Levering Automobile Sales Finance Act, Cal.Civ.Code § 2981, et seq., and (2) for declaratory relief.
Judge Armstrong found that the Arbitration clause was not unconscionable. As procedural unconscionability, Judge Armstrong explained:
[E]ven if AAA’s commercial rules and fees applied, Plaintiffs ignore that AAA is not the only available provider of arbitration services.FN2 The cost to conduct a consumer arbitration before JAMS, which is mandated pursuant to an arbitration clause that is “systematically” included in its agreements with consumers, is only $250. . . . In addition, arbitrations ordered by this Court may be referred to an arbitrator at a cost of $250 per day. ADR L.R. 4-3(a), (b). Given that AmeriCredit is required to advance the cost of the arbitration in an amount of up to $1,500, Plaintiffs cannot legitimately contend that that the cost of the arbitration is prohibitively expensive. See Green Tree Fin. Corp.-Alabama, 531 U.S. at 92.
As to substantive unconscionability, Judge Armstrong found none either under Arguelles:
[T]he amount of Cardenas’ deficiency is $12,500, and the typical deficiency balance is over $11,000-both figures well exceeding the amount of damages involved in Cohen. Paterson Decl. ¶ 8. In their opposition, Plaintiffs completely sidestep the issue and argue that it is not the actual amount of damages involved that is germane, but rather, “whether consumers who are victims of AmeriCredit’s practices will litigate individually.” Pls.’ Opp’n at 21. Ostensibly to show that individuals will not sue AmeriCredit on an individual basis, Plaintiffs proffer the declaration of Kathryn Alvarado. FN4 Ms. Alvarado avers that she was involved in a dispute similar to Mr. Cardenas; namely, that a credit union repossessed and sold her vehicle following her failure to make the requisite monthly payments, and then sued her to recover the balance of the loan remaining following the sale of the vehicle. Alvarado Decl. ¶¶ 2-3. Ms. Alvarado claims that she spoke to five attorneys in the area around Barstow, California, but that none was “interested” in her case. Id. ¶ 5, 48 Cal.Rptr.3d 813.
However, Judge Armstrong denied the petition to arbitrate on the basis that injunctive-relief only claims filed under the UCL can not be arbitrated:
Notably, notwithstanding the passage of Proposition 64, both the Ninth Circuit and at least two other judges in this District have cited both Broughton and Cruz for the proposition that claims for injunctive relief under the UCL cannot be arbitrated. See Davis v. O’Melveny & Myers, 485 F.3d 1066, 1080 (9th Cir.2007) (“Actions seeking … [public] injunctions cannot be subject to arbitration even under a valid arbitration clause.”) (citing Broughton and Cruz ); accord Kilgore v. Keybank, Nat’l Ass’n, No. 08-02958 TEH, 2009 WL 1975271, at *6 (N.D.Cal. July 8, 2009) (finding that UCL claims for injunctive relief not subject to arbitration clause); Ramirez v. Cintas Corp., No. 04-00281 JSW, 2005 WL 2894628, at *4 (N.D.Cal. Nov.2, 2005) (same).