Miriam Garcia v. U.S. Bancorp , 579 F. App'x 581 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 18 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MIRIAM GARCIA, on behalf of herself No. 12-56287
and other similarly situated,
D.C. No. 2:12-cv-01596-SJO-RZ
Plaintiff - Appellee,
v. MEMORANDUM*
U.S. BANCORP, a corporation; U.S.
BANK N.A.,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted June 3, 2014
Pasadena, California
Before: REINHARDT, FISHER and MURGUIA, Circuit Judges.
Defendants U.S. Bancorp and U.S. Bank appeal the district court’s denial of
their motion to compel arbitration. We have jurisdiction under 9 U.S.C.
§ 16(a)(1)(B), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. On the basis of the undisputed facts, the district court found that the
bank representative’s description of the signature card as a document for
“obtain[ing] the bank atm card” failed to convey the true meaning of the signature
card’s terms; that Garcia’s reliance on that description was reasonable; and that
Garcia did not “consent to the terms in the Deposit Account Agreement,” so “a
valid agreement to arbitrate was never formed between the parties.” The signature
card purported to bind Garcia to a 50-page single-spaced document of terms and
conditions, Garcia told the bank representative that she was unable to read or
understand English and she expressly requested translated versions of the
documents presented to her. Under these circumstances, the district court’s
findings of fact were not clearly erroneous, and, because the absence of mutual
assent meant no contract was formed, the arbitration clause in the purported
agreement was of no force or effect. See Rosenthal v. Great W. Fin. Sec. Corp.,
926 P.2d 1061, 1081-83 (Cal. 1996); Gardner v. Rubin, 308 P.2d 892, 896 (Cal.
Ct. App. 1957).
2. The defendants waived any entitlement to a trial under Section 4 of
the Federal Arbitration Act by failing to request that procedure from the district
court, see Cabrera v. Cordis Corp., 134 F.3d 1418, 1420 (9th Cir. 1998), and by
failing to “specifically and distinctly” argue for that procedure in their opening
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brief on appeal, Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 994-95
(9th Cir 2009) (quoting Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.
1986)). Moreover, the district court did not abuse its discretion by not holding an
evidentiary hearing, because there were no disputed issues of fact material to its
decision, and because the defendants did not notify the district court of any need to
cross-examine Garcia about her declaration. Cf. United Commercial Ins. Serv.,
Inc. v. Paymaster Corp., 962 F.2d 853, 858 (9th Cir. 1992).
3. The defendants did not raise sufficiently to the district court their
argument that Garcia assented to the terms of the Deposit Account Agreement by
maintaining her account after receiving notice of changes to that agreement, and no
exceptional circumstances justify considering the argument for the first time on
appeal. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (“To
have been properly raised below, the argument must be raised sufficiently for the
trial court to rule on it.” (quoting Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th
Cir. 2000)) (internal quotation marks omitted)); In re Prof’l Inv. Props. of Am., 955
F.2d 623, 625 (9th Cir. 1992) (“The specific ‘exceptional circumstances’ that this
circuit has identified are as follows: (1) review is necessary to prevent a
miscarriage of justice; (2) a new issue arises while an appeal is pending because of
a change in the law and (3) the ‘issue presented is purely one of law and either
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does not depend on the factual record developed below, or the pertinent record has
been fully developed.’” (quoting Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.
1985))).
4. Because we affirm the district court’s conclusion that the parties never
formed an agreement to arbitrate, Garcia is not bound by the terms of the
arbitration clause. We therefore need not decide the remaining issues disputed by
the parties in this appeal.
We affirm the district court’s order denying the defendants’ motion to
compel arbitration and remand for further proceedings. In so holding, we express
no opinion regarding the status of this case as a putative class action.
AFFIRMED and REMANDED.
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