Ozbasaran v. Tesla, Inc.

evidence.” (Garcia v. Stoneledge Furniture LLC (2024) 102 Cal.App.5th 41, 51 [cleaned-up].)

Tesla has presented two arbitration agreements. The Motor Vehicle Order Agreement (“Order Agreement”) and the Retail Installment Sales Contract (“RISC”) which both contain arbitration agreements. Thus, Tesla has met its burden of production.

Plaintiff, however, argues the Order Agreement and RISC are not valid because he did not assent to the arbitration agreement in the Order Agreement and he did not sign the RISC. As evidence, Plaintiff filed an opposing declaration.

An opposing party can challenge the authenticity of the agreement by testifying under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165; see also Garcia, supra, 102 Cal.App.5th at 52.)

Order Agreement

Plaintiff states he “did not sign or initial anything agreeing to an arbitration provision associated with [his] order.” (Ozbasaran Decl., ¶ 3.) The Order Agreement attached to Mr. Kim’s declaration does not bear Plaintiff’s signature and there is no electronic information to indicate it was agreed to by Plaintiff.

“[I]nterpretation of the arbitration agreement is governed by state law principles.... Under California law, ordinary rules of contract interpretation apply to arbitration agreements. The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. If contractual language is clear and explicit, it governs.” (Id. at 176.)

Under California contract law, “mutual assent, or consent, of the parties is essential to the existence of a contract, and consent is not mutual unless the parties all agree upon the same thing in the same sense.” (Herzog v. Superior Court (2024) 101 Cal.App.5th 1280, 1293 [citation modified].) “This principle of knowing consent applies with particular force to provisions for arbitration, including arbitration provisions contained in contracts purportedly formed over the internet. In the context of an internet transaction, in the absence of actual notice, a manifestation of assent may be inferred from the consumer's actions on the website—including, for example, checking boxes and clicking buttons—but any such

action must indicate the parties' assent to the same thing, which occurs only when the website puts the consumer on constructive notice of the contractual terms. Thus, in order to establish mutual assent for the valid formation of an internet contract, a provider must first establish the contractual terms were presented to the consumer in a manner that made it apparent the consumer was assenting to those very terms when checking a box or clicking on a button. And the full context of any transaction is critical to determining whether any particular notice is sufficient to put a consumer on inquiry notice of contractual terms contained on a separate, hyperlinked page.” (Id. at 1294 [citation modified].)

A clickwrap format is a form of internet agreement that is generally regarded as enforceable because it requires the user to manifest assent to the website’s terms of use “by clicking an ‘I agree’ or ‘I accept’ button, with a link to the agreement readily available.” (Ibid.) But simply characterizing an agreement as a clickwrap does not resolve whether a binding agreement exists. “[I]t is the degree of notice provided, not the label, that is determinative.” (Ibid.)

The Court of Appeal in Herzog found that checking a box stating, “I agree to Terms of Use” did not provide conspicuous notice of the arbitration agreement because directly above the box it expressly told users, “By ticking the boxes below you understand that your personal information, including your sensitive health information, will be collected, used and shared consistently with the Privacy Policy and Terms of Use.” (Id. at 1297-1298.) Under these circumstances, the court could not “conclude that a reasonably prudent user in the position of the plaintiffs would understand after reading this text that the Terms of Use were intended to govern any matters other than the scope of the user's waiver of privacy rights and the management of the user's personal information.” (Id. at 1297.)

Here, Tesla states that Plaintiff placed the order for the Subject Vehicle by clicking a button that read “Place Order” on Tesla’s website. (Kim Decl., ¶ 4.) Immediately below the “Place Order” button appears text in bold font advising Plaintiff that by clicking “Place Order” he would be agreeing to the terms and conditions of the Order Agreement. (Ibid.) The Order Agreement appeared in bold font and was displayed as a hyperlink. (Ibid.) If Plaintiff clicked on the hyperlink, a new window would have opened revealing the agreement or policy described in the hyperlink. (Ibid.)

Similar to the facts in Herzog, there no evidence that the screen where the “Place Order” box was located included a summary of the general terms and conditions covered by the Order Agreement that would have placed Plaintiff on notice of an agreement to arbitrate. Moreover, there is no signature, initial, or any other electronic information demonstrating Plaintiff’s assent to the terms of the Order Agreement. And, more importantly, there is no evidence Plaintiff was required to actually view the hyperlinked Order Agreement in order to complete his purchase.

Based on the foregoing, Tesla has not demonstrated the Order Agreement constituted a mutual agreement to arbitrate.

RISC

The next issue to consider is whether the arbitration agreement in the RISC is enforceable.

Generally speaking, a defendant is “not required to authenticate [plaintiff’s] signature on [the] arbitration agreement as a preliminary matter in moving for arbitration,” and has no obligation to do so unless “the authenticity of the signature” is actually challenged. (Ruiz v. Moss Bros. Auto Grp., Inc. (2014) 232 Cal.App.4th 836, 846.) Here, Plaintiff challenges the authenticity of his electronic signature on the RISC.

A party's consent to arbitration may be evidenced by the party’s electronic signature on the agreement. (Espejo v Southern Cal. Permanente Med. Group (2016) 246 Cal.App.4th 1047, 1058–1060 (sufficient proof that employee signed arbitration agreement by electronic signature; CC § 1633.9 addresses how proponent of electronic signature may authenticate it.)

Civil Code section 1633.9 addresses how an electronic signature can be authenticated—i.e., establish that the signature in question is, in fact, the signature of the person as claimed by the person or entity seeking to demonstrate the validity of a document. Section 1633.9 provides: “An electronic record or electronic signature is attributable to a person if was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” (Civ. Code § 1633.9(a).) Courts have held that the “ ‘[t]he burden of authenticating an electronic signature is not great.’” (Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1067.) “The party seeking authentication may carry its burden ‘in any manner,’ including by presenting

evidence of the contents of the contract in question and the circumstances surrounding the contract’s execution.” (Fabian, supra, 42 Cal.App.5th at 1068.)

“A proponent seeking to authenticate an electronic signature must show the electronic signature ‘was the act of the person,’ which could be shown ‘in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.’ For example, a party may present evidence that the signatory was required to use a unique, private login and password to affix the electronic signature, along with evidence detailing the procedures the person had to follow to electronically sign the document and the accompanying security precautions.” (Garcia, supra, 102 Cal.App.5th at 53 [cleaned-up].)

In this case, the RISC contains typed names with the same script font used for all signatures, including Plaintiff and the president of Tesla Motors, Inc. Plaintiff states he did not sign any “paperwork” when he picked up his Tesla and did not authorize his electronic signature to be applied to any paperwork. (Ozbasaran Decl., ¶ 6.) He simply picked up his vehicle and no arbitration agreement was discussed with him at that time.

On reply, Mr. Kim provides a supplemental declaration providing additional information on how Tesla obtains the electronic signature. In order to execute the RISC, Plaintiff was first prompted on their mytesla.com account to review the Consent to Electronic Transactions document and to select “Accept” if they agreed, which Plaintiff did here. Once Plaintiff selected “Accept” the RISC is generated. The RISC is not generated unless a consumer selects “Accept” to the Consent to Electronic Transactions.

Once the RISC is generated, the buyer receives a message to log in to their account to review and electronically execute the RISC. In order to do so, they must enter their date of birth for verification. Once the buyer electronically confirms that they accept the terms of the RISC, their digital signature is applied to the documents, as was done by Plaintiff on September 9, 2023. The executed RISC then becomes available on their mytesla.com account. Only after a RISC is executed can the buyer then physically accept delivery of the vehicle. Plaintiff would never have been able to physically accept delivery of a vehicle without having completed these steps.

Plaintiff was provided with an opportunity to respond to Mr. Kim’s supplemental declaration, and did not do so.

Therefore, the court finds Tesla has provided sufficient evidence that the electronic signature on the RISC was authorized by Plaintiff, and that the arbitration agreement in the RISC constituted a mutual agreement to arbitrate.

The arbitration agreement also encompasses the dispute in this case as it covers any dispute relating to Plaintiff’s “credit application, purchase or condition of this vehicle.”

Plaintiff argues that the arbitration agreement is unconscionable. (See Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 492-493 (Ramirez) [unconscionability, generally]; Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243 [same].)

There is a low degree of procedural unconscionability here as the RISC appears in a standardized, pre-printed form offered by the party with superior bargaining power on a take-it-orleave-it basis. “ ‘[T]he adhesive nature of” an arbitration agreement “is sufficient to establish some degree of procedural unconscionability.’ [Citations.]” (Swain v. LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59, 67- 68.)

But plaintiff has failed to establish any substantive unconscionability. (See Baltazar, supra, 62 Cal.4th at pp. 1243-1244 [both procedural and substantive unconscionability must be present before court may refuse to enforce a contract based on the doctrine of unconscionability]; Ramirez, supra, 16 Cal.5th at pp. 492-493 [although adhesion contracts are procedurally unconscionable, they nevertheless “remain valid and enforceable unless the resisting party can also show that one or more of the contract’s terms is substantively unconscionable or otherwise invalid”]; see also id. at pp. 494- 495 [substantive unconscionability, generally].)

Specifically, plaintiff contends the RISC is substantively unconscionable because it is one-sided. (Opp. at p. 11.) This argument fails. The RISC applies to both plaintiff and defendant. “Any claim or dispute . . . between you and us. . . shall at your or our election be resolved by neutral binding arbitration.” (RISC at p. 5.)

Accordingly, the motion to compel arbitration is GRANTED. Plaintiff shall proceed with plaintiff’s claims in the manner described in the arbitration agreement.

The case management conference is VACATED.

The court sets a status conference regarding the arbitration for January 22, 2027 in Department C28 at 9:00 a.m. Five days before the status conference the parties are ordered to submit a joint statement concerning the arbitration.

Defendant shall give notice of this ruling.

63. Catena v. Defendants Rose Wade-Northen and Patrick Northen’s motion Wade- for stay is DENIED. (See Avant! Corp. v. Superior Court Northern (2000) 79 Cal.App.4th 876, 886-889 (Avant) [factors]; People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 952.) 2025- 01504829 Defendants fail to identify a single Penal Code section in their moving papers under which they may face potential criminal liability until their reply brief, where they identify Penal Code section 278.5 as the source of their potential exposure. Penal Code section 278.5 sets forth the crime of child custody deprivation. (See Pen. Code, § 278.5; see also People v. Jo (2017) 15 Cal.App.5th 1128, 1152-1159 [elements].)

That said, defendants present no evidence that a criminal proceeding has been filed against defendants or that such a proceeding is forthcoming, likely, or even probable. (See Rodriguez Decl., in passim.) Indeed, there is no indication that a criminal investigation of defendants has taken place to date (see ibid.), despite the fact that plaintiff’s ex-wife allegedly abducted L.C. well over a year ago in January 2025, plaintiff reported the abduction to the Orange County District Attorney’s (DA) Child Abduction Unit in February 2025, and plaintiff has been working with law enforcement and other authorities to locate his daughter since January 2025 and continuously to this day. (See FAC ¶¶ 22-23, 26; Catena Decl. ¶¶ 6-8, 18, 23-24, Ex. I.)

At the same time, there is also no end in sight as to defendants’ claim of potential criminal exposure. L.C. is still very young (see Catena Decl. at Exs. A, U) and plaintiff’s ex- wife has continued to conceal and detain her with defendants’ alleged continued assistance for well over a year now, despite court orders requiring the ex-wife to return the child to plaintiff and the fact that plaintiff has had sole legal custody of L.C. since at least March 2025. (See id. ¶¶ 5, 18-25, Ex. A.)

Further, the requested blanket stay would thwart plaintiff’s ability to use civil discovery directed at others to aide in his claims.

While it is true that defendants’ Fifth Amendment rights are theoretically implicated in this case, given the lack of any