Friday, November 27, 2015
Court of Appeal Rules:
Translation Omission Invalidates Arbitration Clause
By KENNETH OFGANG, Staff Writer
The omission of an arbitration clause from the Spanish translation of an agreement for the sale of a used car renders the clause unenforceable where the agreement was negotiated in that language, the First District Court of Appeal has ruled.
Div. Two Tuesday ordered publication of its Oct. 30 opinion in the case of Alfredo Ramos. Ramos sued Westlake Services LLC, which provides financing to customers of Pena’s Motors in the Alameda County community of Brentwood, claiming that the company’s failure to provide a translation of his contract violated the Consumer Legal Remedies Act, Civil Code §1632, and the Unfair Competition Law.
Ramos alleged that an employee of Pena’s Motors, acting as an agent for Westlake, not only sold him a car, but also what he later learned was a so-called “Guaranteed Auto Protection,” or GAP, contract. The GAP contract would purportedly pay the difference between the actual cash value of the automobile and the outstanding balance on his car loan in the event the car was totaled, according to the complaint.
Motion to Compel
After Ramos filed suit two years ago, Westlake moved to compel arbitration, citing a “notice of arbitration” appearing on page 6 of the English-language “conditional sale contract and security agreement” signed by Ramos. In opposition, Ramos submitted a declaration, which was in English and Spanish and prepared with the assistance of an interpreter, saying that the salesperson spoke Spanish and gave him copies of both the contract he signed, and a Spanish translation.
The Spanish translation differed from the English, however, because there was no copy of the GAP contract, no explanation of GAP coverage, and no arbitration clause.
“For the first time, I learned from my attorney that I had ‘agreed’ to arbitrate all claims against Defendant,” Ramos declared. “I was surprised and had I known about these I would not have agreed to it.”
The interpreter submitted a separate declaration, saying she reviewed a Spanish copy of the sales contract and there was no arbitration clause. Westlake replied that there was “no foundation” for the translation offered by the plaintiff.
A Westlake employee declared, based on his “review of Westlake’s files and documents,” that a document attached to his declaration was a true Spanish translation of the sales contract, as provided to Westlake by Pena Motors. That document included the arbitration clause, but named a different arbitration provider than the English version and was unsigned.
Alameda Superior Court Judge Wayne Carvill, in denying the petition to compel arbitration, concluded that the translation attached to the plaintiff’s declaration was more likely the one he was actually provided. He reasoned that the absence from Westlake’s translation of the page on which the arbitration clause appeared in Ramos’s version, resulting in the Westlake translation being one page shorter, supported a conclusion that the Ramos translation was “a true and correct copy” of what he was given at the dealership, regardless of what the dealer gave Westlake.
Justice Marla Miller, writing for the Court of Appeal, said it was reasonable to infer from the facts that Ramos spoke little English. While that fact alone would not preclude enforcement of an English-language contract, she explained, the fact that he was given a purported translation of what he signed, and that the translation did not include an arbitration clause, is significant.
Although the trial judge did not explicitly reach the issue, Miller concluded, his ruling was correct because the plaintiff correctly argued that the arbitration clause was “hidden” in the English version of the contract, so that there was “fraud in the execution” of the clause and no “mutual assent” to arbitration.
Under §1632, she noted, the dealer was required to provide Ramos with a translation of his contract in the language in which the agreement was primarily negotiated. “Given this, it would be anomalous to hold that Pena’s Motors was required to provide Ramos a translation of the English Contract, but that under all of the facts of this case Ramos was not entitled to rely on the accuracy of that translation.”
The case is Ramos v. Westlake Services LLC, A141353.
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