Shea

Defendant Household Bank (SB), National Association appeals from an order denying its petition to compel plaintiff James B. *87 Shea to arbitrate his claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and fraudulent and negligent misrepresentation. Defendant contends plaintiff is bound to arbitrate under the terms of an amendment to plaintiff’s credit card agreement. Plaintiff raises numerous arguments to defeat the arbitration agreement’s enforceability. We conclude plaintiff is not bound by the amendment and affirm.

Facts

In 1993, plaintiff opened a credit card account with defendant. The contract allowed defendant to modify it upon written notice: “. . . [W]e may change or terminate any term of this agreement or add any new terms at any time, including without limitation adding or increasing fees, [etc.] . . . .” (Capitalization and bold type omitted.) The contract also included a choice of law clause that designated Illinois and federal law to govern disputes. Six years later, plaintiffs account was revised; the choice of law clause now designates Nevada and federal law.

Subsequently, defendant notified plaintiff that…

In a companion opinion, Mandel v. Household Bank (Nevada) (2003) 105 Cal.App.4th 75 [ 129 Cal.Rptr.2d 380 ] *91 (Mandel), we analyzed a provision in a credit card agreement barring class actions identical to the provision in this case. In Mandel , we concluded the provision was unconscionable. As in Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094 [ 118 Cal.Rptr. 862 ], we struck and severed the provision and ordered the matter to arbitration under the principles of Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 [ 99 Cal.Rptr.2d 745 , 6 P.3d 669 ]. I favor reaching the same result in this case.

I concur in the portion of the majority opinion finding the limitation on class actions in the arbitration agreement in this case is unconscionable. I respectfully dissent, however, from the majority’s conclusion that Shea is not bound by the arbitration agreement. The trial court heard the motion to compel arbitration under Code of Civil Procedure section 1281.2. The arbitration agreement was alleged. The same majority members in this case previously held that once the existence of the arbitration agreement is alleged, the burden shifts to the objecting…

Defendant Household Bank (SB), National Association appeals from an order denying its petition to compel plaintiff James B. Shea to arbitrate his claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and fraudulent and negligent misrepresentation. Defendant contends plaintiff is bound to arbitrate under the terms of an amendment to plaintiffs credit card agreement. Plaintiff raises numerous arguments to defeat the arbitration agreement's enforceability. We conclude plaintiff is not bound by the amendment and affirm.

In 1993, plaintiff opened a credit card account with defendant. The contract allowed defendant to modify it upon written notice: ". . . [W]e may change or terminate any term of this agreement or add any new terms at any time, including without limitation adding or increasing fees, [etc.] ____" (Capitalization and bold type omitted.) The contract also included a choice of law clause that designated Illinois and federal law to govern disputes. Six years later, plaintiffs account was revised; the choice of law clause now designates Nevada and federal law.

Subsequently, defendant notified plaintiff that effective…