please the court my name is ed took you know one of the on behalf of us bank national association has used his bank for we're here today because the district court denied us banks motion to compel arbitration in doing so the district court the word shall is used now rather than following the f a a section for procedures what the district court did here is it polled the state he's perceived years in the california arbitration act as set forth in rosenthal vs great western financial services corporation but in the rosenthal which was a california supreme court decision in that case itself the california supreme court actually said that its procedure is different than what's in the f a a it says that section four of the f requires a trial whereas what rosenthal was saying is week california courts can decide it on the papers here were in federal court obviously the f a a procedures apply so under section four the district court had to send this set this case for trial as opposed to looking at the declaration of it by the parties drawing factual inferences and making determinations of fact to see who argues that it was ok for the district court to decide on the motion papers because section six of the f a a says any application to the court here under shall be made and heard in the same manner provided by s when we brought the motion under section four your honor it's there's only two options we didn't explicitly request trial in the papers because if the district court didn't find that that the arbitration agree the only other option intersection bores to go to trial there's no option to make findings of fact based on a few declarations in the record and and decide whether or not an agreement is made if if there's an issue of back in the record the matter goes to trial in this case a jury trial because ms garcia elected the man of the jury in her complaint now there's not much ninth circuit or any ninth circuit reported decisions on this but the second circuit actually does address the issue and the second circuit says it's basically a summary judgment standard if there's an issue of fact you go to trial and if there is no issue of fact then and according to decide it but here there was obviously an issue of fact because there are numerous facts in the record that show ms garcia agreed to the arbitrator vision first of all she admits that she walked into the u s bank branch and open the checking and savings account she had no prior relationship with us bank at all she admits that she signed a signature card that's her signature on there she doesn't contest that and it says on the signature card she signed up by signing this english card you are also acknowledging your express yet the only factual dispute is that ms garcia is arguing that she didn't understand english and therefore she didn't know what she was signing when she signed a signature card and they wouldn't they didn't not give her a spanish translation of the documents and therefore she shouldn't be of created a binding arbitration country it is whether that created a contract if it didn't create a contract then the issue it goes to trial because we don't know such things as what ability to speak english is we don't know whether she really could not comprehend a document ok but if you find those fact the district court need to know the other facts to determine whether he's correct as a matter of won't the fact that we don't know because there was no trial we don't know as i said whether she what a real comprehension of english was we don't know whether she had the opportunity to go home and have one or are friends or relatives look at the agreement tell her what it was we don't know whether she had the ability to pass someone else to look into the agreement we don't know whether when she signed the document big bigger issue a bigger issue here is this is not an issue of fraud in the execution she knew that she was opening a checking account at the bank she knew she was entering into a contract become a checking account by definition is a contract she was given a packet of papers of all these agreements she doesn't deny it if you look at the record all the ms garcia says that three thirteen if she doesn't recall seeing these documents she doesn't recall she isn't nice to receive them us banks evidence is that  opportunity to examine this garcia she doesn't say she didn't receive them she just said this one particular document she doesn't remember seeing so there's clearly an issue of fact on that it has resolved at the summary trial required by section four of the better arbitration act  not only is that but the deposit account agreement is available she could ask the branch for it which gave it to her so she didn't have to do that you can call the one eight hundred us banks telephone number they'll send you the agreement you can request a copy  from another document under california law for instance laws versus first national bank assam a tale county case one twenty two caliber second eighty four the signature court ruled it incorporating bank rules is binding on the a contract does not involve any obligation on your part as not incorporate any agreement i can't believe a california court would say it does all of those things she she wasn't told that first but i  not just as simple as saying what it is we're dealing with the facts in this case which was according to her she was told to have to sign a signature card to open an account and step in to get an a t m card i thought and then there was his provision on here that is what we're seeing we're talking about what we don't know because we haven't had a trial or been a discovery is what mr garcia was actually told if she was there for all the time she says she was in a declaration she certainly was told more than that one sentence and that's why really in a case like this it has to go to the summary jury trial where the miss garcia can be examined and we can actually determine what happened as opposed to just relying on a brief declaration in the record and that's what section i'd like to ask you a question or a couple questions regarding the your argument regarding the assent to arbitration yes garcia by maintaining her her account for several years an on that sure but i'm looking at section four or just want to make sure we're looking at the right i want to know where in section four you think we are because of the pos through the case that is if the making of the arbitration agreement or the failure neglect or refusal to perform the say be an issue the court show pussy summarily to the trial itself if no jury trial be demanded and if you know look through the district court docket you have to really look through the facts section of your motion to become how arbitration in order to find it and i just just when when the arbitrator cream was amended it was sent sent to ms garcia or the or it was noted in the account agreement i mean the bank statements that she received and and she maintained the agreement after that if you look at  page page of one fifty four the next of the record it says there's a whole there's a section there and it says we change the arbitration revision we did you make this argument before the district court did you develop this argument that's over at my desk but we certainly submitted all the facts to support it and argued it and the other thing that happened here is we didn't have any hearing at all not much less a trial like we're supposed to so you know i had had it come up that this was the issue we could have certainly explained it to the court but we didn't have that opportunity this language difficulty with the opposition we had one week to put together the reply brief we disputed it you know had we had a hearing and we would have known that but the gist of what was thinking we certainly could have could have argued more on the point but we didn't even have a oral argument on the do you ever tell the district judge that he was very or had erred not not having taken this not explicitly have we had a hearing actually where we actually appeared in court to discuss that we certainly would have would have raised that we had no idea that the judge would rule on what followed the rosenthal california procedures because we were in federal court and i section four applies not not the california arbitration act so we had no idea that this was going to happen there was no reason to raise that under section four you  choices had we had an oral argument i certainly would have made the point but there was no pose this is an opportunity to call there whether we could you know under the central district rules of motion reconsideration as three elements we don't meet the issue is decided like a summary judgment motion if the allegation regarding the formation they remember is a genuine issue a material fact they must be resolved by the finder of fact the trial are reviewed the record must be interpreted as a please the court david deaver bertus from this garcia i think that the first issue that i want to talk about is just the absolute waiver here i mean the litigants have to take some responsibility for alerting district courts t courts procedure if they want procedure to be followed a certain way i can say anecdotally cases in my experience are decided on the papers on these motions all the time in the dist i know that when i want to jury trial or i want an evidentiary hearing if i'm in the state court in the rosenthal i asked the court for i put it in my papers i give the court and indication that that is the desired procedure here that never happens the first time anything about the process of this proceeding was raised it was on appeal never in their initial moving papers did they ask for a jury trial if the court thought that there was  a just a factual dispute as to formation never in their reply papers did they ask for when they got the notification that comes saying the court's taking this under submission without a hearing silence radio silence they didn't ask for a hearing i know that i would have at that point gone in next party and said we're entitled to a hearing we would like a hearing please don't consider this on the papers they didn't do it so as a procedural matter i think they've if there is any entitlement to a hearing if the court were going to explain in a minute why i think there's no entitlement to a hearing on these facts because there's no material disputed fact but before i get there i think the first step is there's been a waiver of any right to a jury trial in any way shape or form the jury trial demand was our regional jury trial demand inside of our complaint which you put in there as a safety mechanism so you don't forget to file the jury trial demand later if you get removed which i think is what happened here but i don't think that is enough to alert a district court in the context of a proceeding for arbitration in a party wants a jury trial because the reality is that's not how it were to derrida secondary question the primary question is whether is no material dispute fact here what we have is on page i believe three fourteen of the record we have missed garcia saying i was told signing that signature card was something i needed to do to get an a so we have a plaintiff who is it's undisputed on the factual record before the court that she does not speak english she does not read english she communicated that to the individual opening the account now  the other side doesn't dispute that mr i'm going to print now pronounce her name wrong out of respect if i can just miss makiya her her declaration the person to open the account for ms garcia does not dispute that they spoke spanish  trial court and i do wonder if you acknowledge this to see california abrogation federal arbitration procedures different but in rosenthal the defendants there they offer declarations disputing all of the foundational facts the two plaintiffs in the rosenthal case who did not speak english and communicated that the defense gave declaration saying that's not what happened so there was an evidentiary conflict that led to a needed fact fine we don't have that evidentiary conflict here on our five of the district court's order footnote one the court notes quote the they meaning the facts are largely undisputed by the evidence presented by defendants with one slight exception plaintive declares  she does not recall receiving a copy of the positive count agreement or see a declaration paragraph a miss make here declares that is her general practice to provide a copy of the deposit account agreement and has no reason to believe that she did not provide one in the execution exists if the individual is deceived as to the nature of his act and actually does not know what he is signing and then there rosenthal for the two plaintiffs the did not speak english with which were this comes out of page forget the page but the plaintiff is greco is one of the names and for the greco plaintiff they communicated they don't speak english they asked for the documents and in an alternative language they were instead to told hey sign this form for a purpose that was not the real purpose that's exactly our facts so we fit exactly what under the rosenthal court said that's a perfect prime example of fraud in the execution now those fought in the execution facts the facts that we rely on to get to that conclusion aren't disputed it's not disputed that my client does not speak english effectively to communicate orally or in writing it's not disputed that she conveyed that and asked for the documents it's if i can is opened every single piece of paper that comes to her is in english nothing is provided in spanish she's already communicated that she doesn't she cannot read these documents now i do believe your honor point earlier is very well taken this argument of the ascent issue that they've raised just like the issue of a jury trial it wasn't really an issue down below did they put in the evidence in the record yes i believe there's not a single part and i don't want to say this as a positive statement but i believe from memory and i was not involved in the trial court but i have read the papers i don't believe there's anything in their legal argument section of their briefs that makes this argument and i do believe that's a waiver beyond that the baby says bank of america that we point out in our brief says even if you can't you can't have what are called the bill stuffers to create a contract that that departs from the original terms of the contract in an unfair way effectively and that's my paraphrase of baby it's going to lose paraphrase but in beatty there is no original arbitration agreement and then they try to create in the sense argument by having bill stuffers thrown into your you know mail basically in the courts and then you know that's even if you reserve the unilateral right to modify when you create the original account you can't modify it in a way by adding an arbitration agreement that wasn't there in the first place well if our fraud in the execution argument is correct which i believe it is there's no arbitration agreement here in the first place that's the effect of a fraud in the execution finding and the district court did fine and we met that by preponderate so if there's no arbitration agreement that is valid in the first place they cannot create a beyond that if you don't prevail on your first to agree and i think the answer is absolutely not when it least on the limited facts we have before us when i go into an account i go in and i'm assisting in opening up an account and i tell everybody i tell the people i'm dealing with i only speak spanish i don't read or speak english you communicate with me orally in spanish and then you send me documents in the mail you know sixty page singles really confusing bank documents that only are in english i don't think that can be a legitimate creation of a contract under at least these unique facts now can bill stuffers under some circumstances create contractual rights under the assent theory yes there are some circumstances but i don't believe in the circumstance where they know she doesn't speak english and she's told them that they can throw sixty pages of single spaced fine print in english at her and say gotcha you presented that's not a meeting of they were tendered the issue and the district court rejected it or they didn't because we've got a clear finding denying the motion and i don't believe the court has to articulate every factual basis we can imply findings so either it's raised and rejected by the district court and then the issue becomes do we defer to those conclusions or but i think the correct really correct answer is it's been waived because i don't believe this was an issue really brief and argued as a legal matter in the district court and it's one thing to put in evidence that might make you or permit you to make a legal argument that's not enough you've got to make a legal argument you've got to work to kill it to position to the district court and those are the rules and that's what to me as somebody that wasn't request for three and i think as a practical matter ok i do think it is an area where it's interesting because there's not a ton of authority on this there is some second circuit stuff out there and by the way the way they argue they i'm sorry  to us to do our jobs and a judge a jury trial waiver every good plaintiff lawry the files cases that may get removed will put a demand for jury trial with in the complaint that pro forma action and by the way our jury demand for jury trial is on when if you really want to parse it we we if you look at the actual language in our i think it's in eighteen of the record our languages we demand a jury trial for herself and the class on all claims so tria an unfair gotcha this is for district courts it's not the court's fault that the court didn't realize that our demand for a jury trial on claims done at the outset of the case was really a demand by the defendants to get a procedure a jury trial out of a petition for to compel arbitration that they never asked for in the moving papers never asked for reply never asked for when they wanted never went to the court and said wait a minute don't take this off calendar without a hearing and that's the other thing when you get a notice saying the judge is going to take it under submission without a hearing and you believe you're absolutely entitled to a hearing speak up and then i also believe it would have been a proper reconsideration motion if the court if the court did something that the party believed was basically an absolute fundamental violation of the process without prior notice and that's what they're saying they're saying they didn't have notice the court would do this well if they were really blindsided by the court's ruling bring it back to the district judge it a reconsideration i think the courts are more forgiving than that on that local rule i mean there just more always get to the same result which is the they didn't ask for it they've waived it but even if there is an absolute right to a jury trial if there's a disputed issue of fact on formation and if they preserve that there's no disputed issue of fact on formation the only theoretical dispute which anyone thinks the dispute but i know it's not material is footnote one it is on as order says so is the only dispute potential dispute is whether  garcia was given the full deposit for the full deposit account agreement at that signing time but that's an irrelevant dispute because that just goes to what she could have done had she gone on with it and the case is say the formation issue and the reliance issue looked at the point of signing not what could could you done later i see my time is up unless there are no questions thank you i wanted to think of course i needed to scheduling a competition to move us for today so i thank you for accommodating far as a hearing goes there's no need for a hearing if the court granted our motion that's what section four says so there was really no reason for us to ask for a hearing we got the notice of being taken off calendar because we thought we were going to have our motion granted did you f and then we go on to discuss the summary judgment standard because the quarter already will be against us brief you do are not saying about the immediate trial which is saying today the court shall make an order directing the parties to proceed or betray ssion unless the making of before the district court and work with you know in other words or where you proceeded before the district court of looks like coming across as the way you visualize this case until you got to the reply was that there was a want a motion didn't even submit any agreement with it i mean i can see how the judge has said there's no issue of of fact why should you get a jury trial here but then that's not what happened here we have a sing out for a jury trial and arbitration what we want is a trial on the issue whether it's a jury or not i think they demanded a jury so they get it unless they want to withdraw the man for the entire case but i  i just want to make one one point about the rosenthal case there's no dispute here that ms garcia and the bank and into a contractual relationship and she opened a checking account there she gave them her money they had agreements  standard which as you know is not appropriate on summary judgment because there were certainly evidence in the record to show in agreement she had signed the account the signature card it incorporated the account of remit she was given a package of documents and she received the statements in the mail saying  speak english there was a plane up by a pupil i believe p z row he didn't understand english and he was still sent arbitration the people that were sent to arbitration were the ones that had a long term relation with the bank we understand how we interpret california law the question is what were the facts in dispute on the signature on the signature card which is all that was looked at by the district court you're saying well there was a lot more surround here that should have been surface in an evidentiary hearing that's why i'm troubled there was a action on your part to at that point get that before the court so we'll set that aside we believe now what the court had before it was at the creation of the contract the only thing that's in the record as far as we've been able to find is the signature card and so on and so forth or what was sent to her afterwards or what she could have done after the signing was a richer room so this record work that it is that's the point in time where you are valuable whether there was a creation of a contract that included arbitration yes and what we have in the record is she signed the card she was given this package she doesn't recall receiving if she didn't say she did not receive it are our practice to give it we have t declaration the record saying that she had a long conversation with him in the he obviously they didn't just have one sentence in that conversation that this is the sign this is you can a t m card there was discussion about the  where it will be three minutes to court and everything