Filed 8/1/23 Le v. Elevate Credit CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

DANH LE, 

Plaintiff and Appellant,

v.

ELEVATE CREDIT, INC. et al.,

Defendants and Respondents.

 B319914

 

 (Los Angeles County

 Super. Ct. No. 21STCP03900)

APPEAL from an order of the Superior Court of 

Los Angeles County. Kristin S. Escalante, Judge. Affirmed.

Zimmerman Reed, Caleb Lucas-Hansen Marker and 

Flinn T. Milligan for Plaintiff and Appellant.

Morrison & Foerster, Nancy R. Thomas, Matthew E. 

Ladew, and James R. Sigel for Defendants and Respondents.

______________________________
2

Plaintiff and appellant Danh Le (Le) took out 17 separate 

loans from defendant and respondent Rise Credit of California, 

LLC (Rise Credit).1 After either cancelling these loans or paying

them back in full, Le initiated an arbitration proceeding, alleging 

that the interest rates to which he had agreed were 

unconscionable. The arbitrator denied Le’s claims, and Le 

petitioned the trial court to vacate the arbitration award. The 

trial court denied Le’s petition, and Le appeals.

We affirm.

FACTUAL BACKGROUND

I. The parties

A. Le

Le is a highly educated software engineer. After 

immigrating to the United States in 1975, he earned a B.S. and 

an M.S. from the Georgia Institute of Technology. He then began 

to work for well-known companies, including Boeing, Raytheon, 

Hughes, and General Research Corporation, and he continued to 

do so during the time when he obtained the loans at issue and 

through the date of the arbitration hearing. Le took all his 

coursework in English; he does his engineering work, for which 

he obtained a classified clearance, in English; and he testified in 

English with “no difficulty” at the arbitration hearing. 

B. Rise Credit

Rise Credit’s “business practice is to provide access to credit 

to non-prime borrowers.” It offers unsecured consumer loans at 

interest rates commensurate with the level of risk it incurs when 

1

Elevate Credit, Inc. (Elevate), is also a respondent on 

appeal. As explained by the arbitrator, “Elevate provides loan 

services to Rise [Credit], which is . . . the ultimate lender to 

consumers.”
3

it offers those loans. Rise Credit does not sue borrowers who 

default, which increases costs. Its interest rates also reflect its 

other costs, including: (1) origination costs (including 

advertising, underwriting, and payments to third-party vendors 

for applicant credit data); (2) servicing costs; (3) costs of funds; 

and (4) costs of consumer-facing contractual provisions, including 

a five-day rescission window and no prepayment penalties.

The lender uses an underwriting model that “pull[s] from 

several credit bureaus [and] data sources up to 10,000 different 

variables to . . . assess the capacity and the ability to repay.” It 

employs “35 to 40 data scientists on staff that are focused on 

. . . making the right decision and considering the capacity and 

the ability for a consumer to repay.”

II. Rise Credit’s loan agreements

When Rise Credit offers borrowers loans at the challenged

interest rates, it provides them both time to decide and notice 

about the rates. Applicants have 10 days to decide whether to 

accept, and roughly 20 percent of borrowers opt not to take the 

loan. Even after a borrower accepts a loan, he or she has at least 

five days to change his mind and cancel it with no penalty.

In each loan agreement, just below the table with the 

payment summary, Rise Credit includes a bold, all-caps 

“WARNING” advising borrowers to consider other financing 

options: “This Loan is not meant to help with your long-term 

credit needs. Repeated or frequent use can create serious 

financial problems for you. We encourage you to think about the 

costs and benefits of all alternatives before borrowing.” (Bolding 

omitted.)

Le’s loan agreements also contained an arbitration 

provision. Le’s arbitration agreement with Rise Credit provides 
4

that, in addition to the grounds enumerated in the Federal 

Arbitration Act, the parties have “the right to judicial review of 

(a) whether the findings of fact rendered by the arbitrator are 

supported by substantial evidence and (b) whether the 

conclusions of law are erroneous under the substantive law of 

California and applicable federal law.”

III. Le’s loans

From 2017 to 2019, Le executed 17 agreements with Rise 

Credit, each for $3,500 loans, quickly rescinding or repaying 

them each time. Although Le initially responded to a mailer from 

Rise Credit, he testified that he did not need a mailer to find or 

apply for a loan, and he could not even remember details about 

which lenders had sent him mailers.

Of his 17 loans, Le canceled six of them free of charge. As 

for the other 11 loans, Le repaid them all in “about 25 days”—

taking advantage of provisions allowing borrowers to pay off their 

loans early with no prepayment penalty. At the time, Rise

Credit’s applicable interest rate for first-time borrowers was 

135 percent to 235 percent (though the rates on Le’s loans were 

all slightly under 200 percent). In total, Le “paid just a little over 

$7,500 in interest for all of his Rise [Credit] loans over just under 

three years, a small portion of the overall debt” of $59,500.

These 17 Rise Credit loans were not the only ones Le 

secured. During this same period, Le also availed himself of 

many other options, including friends and family, credit cards, 

credit union loans, 401(k) loans, and unsecured loans from at 

least six of Rise Credit’s competitors. The loans that Le took out 

from Rise Credit’s competitors similarly bore interest rates of 

130 percent to 230 percent. Although Le suggested that “he had 

some personal need for funds mostly to help family members,” he 
5

has never identified “any medical urgency or other necessities of 

life for which he needed money.”

IV. Legislature adopts a rate cap after Le originated his loans

In 2020, the California Legislature amended the Finance 

Code to prelude lenders from charging more than 36 percent

interest on loans between $2,500 and $10,000. (Fin. Code,

§ 22304.5.) Because loans to nonprime borrowers would no 

longer be profitable at this interest rate given their credit profiles 

and related credit risks, Rise Credit stopped offering its product 

in California.

Le originated all of his loans before this change to the 

Finance Code, and he acknowledges that the recently amended 

statute does not apply to any of his loans.

PROCEDURAL BACKGROUND

I. The arbitration proceeding and award

In or around June 2020, Le initiated the underlying 

arbitration proceeding against Rise Credit and Elevate, alleging

claims stemming from his loans. By the time of the hearing, the 

“material issues of fact” were limited to “whether the interest 

rates at issue were unconscionable and unlawful” and whether 

Rise Credit’s “conduct in entering into the loans was ‘willful’ such 

that it could affect the unconscionability analysis[.]”

During the hearing, among other things, Rise Credit 

presented a demonstrative exhibit (a “slider”) showing the 

various ways Le could customize his loan terms when he 

borrowed from the lender. Le testified when he first applied for 

the loan with Rise Credit, or at any time during his loans with 

Rise Credit, he never saw the “slider” regarding his loans.
6

After a multiday hearing, the arbitrator issued a detailed 

26-page award, finding the interest rate in this case “shockingly 

high,” but rejecting Le’s claim that the rate was unconscionable.

As relevant here, the arbitrator found that Rise Credit’s 

“business practice is to provide access to credit to non-prime 

borrowers, who were not overly pressured into entering into, and 

had a meaningful choice regarding the loans at issue.” In fact,

Rise Credit warns borrowers and discloses, not hides, the high 

costs of its loans.

As for Le, the arbitrator found that he was “a serial 

borrower, knowledgeable and somewhat sophisticated in his 

endeavor to obtain funds for his needs,” and that he “would go 

looking” for loans. The arbitrator determined that Le’s 

sophisticated borrowing practices, including his prompt 

payments and cancellations, sometimes “depriv[ed] the lend[er] of 

the full fruits (interest) of their bargain.” Le “understood that 

these were expensive loans, and he understood the interest rates 

and attendant consequences. He knew how to rescind and have 

use of the funds for the longest time possible without cost, before 

returning them.”

“[S]ignificantly,” the arbitrator found, Le “has no debt 

now,” and there was “no showing he used one loan to pay off 

another nor did he stack them.” Rather, “[t]hroughout his 

relationship with [Rise Credit], he controlled his borrowing.”

Regarding Le’s claim that he had not seen the “slider” 

showing the ways he could customize the terms of his loans, the 

arbitrator expressly found him not credible.

The arbitrator then found that the interest rates in Rise

Credit’s loans to Le were not unconscionable by applying the 

factors set out in De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 
7

966 (De La Torre), “the leading case on the issue,” to the 

particular facts here.

First, the arbitrator found that the circumstances of Le’s 

transactions evinced no significant degree of procedural 

unconscionability. There was “no oppression,” as Le “is a welleducated person who speaks, understands, works in and [was] 

educated in English,” and he testified that “based on his math 

training, he understands interest rates and understood those on 

his loans.” There also was “no duress” or “sharp practices,” 

emphasizing that Le “was never pressured by Rise [Credit] and 

could take [his] time to decide if the first or any of the 17 loans 

were right for him.” And, “there was no surprise as to any term,” 

all of which were “prominently displayed.” Thus, Le “was well 

aware of the loan terms, and he kept coming back knowing them 

as well.”

Second, the arbitrator found that Le failed to meet his 

burden of demonstrating that the interest rates for his 17 loans 

were substantively unconscionable. Le’s arguments, the 

arbitrator explained, “ultimately fail[ed] to speak to the 

particulars of this borrower and his circumstances.” While the 

arbitrator acknowledged that Rise Credit’s interest rates had 

been high, she found that Le “presented no evidence that his 

credit profile was one that would justify lower rates.” Nor had Le

presented any “evidence regarding a conscionable rate based on 

[his] credit risk and [Rise Credit]’s costs,” or any evidence that 

the lender’s rates were somehow greater than those prevailing in 

the relevant market. The arbitrator further found that Le “got 

value for his 17 loans and paid them back so soon his interest 

payments and the costs of the loan to him were no[where] near 
8

what they would have been if taken to term.” Accordingly, “[a]t 

all relevant times, he had control over his financial well-being.”

II. Le’s petition to vacate the arbitration award

On November 29, 2021, Le filed a petition to vacate the 

arbitration award. He argued the trial court should vacate the 

award because the arbitrator exceeded “her authority, and the 

award cannot be fairly corrected.”

III. Trial court order denying Le’s petition

After full briefing and oral argument, the trial court denied 

Le’s petition and confirmed the arbitration award. The trial 

court began by explaining that, given the judicial review 

provision of the parties’ arbitration agreement, its task was to 

“determine whether the arbitrator followed the correct

unconscionability analysis, and whether the analysis was 

supported by the evidentiary record.” The trial court concluded 

that Le had “fail[ed] to demonstrate that the mixed findings of 

fact and law were without substantial evidence or authority.”

With respect to procedural unconscionability, the trial court 

determined that Le had not made any arguments that the 

arbitrator’s findings on oppression, surprise, sharp practices, 

duress, or bargaining power were unsupported by the record. 

Citing De La Torre, supra, 5 Cal.5th at page 983 and Torrecillas 

v. Fitness Internat., LLC (2020) 52 Cal.App.5th 485, 493

(Torrecillas), it rejected Le’s argument that the adhesive nature 

of the loan contracts was, by itself, sufficient to establish 

procedural unconscionability, explaining that “adhesion alone 

does not automatically render a contract procedurally 

unconscionable.” “At worst,” the “[a]rbitrator should have found 

a minimal to low degree of unconscionability.”
9

With respect to substantive unconscionability, the trial 

court rejected Le’s argument that the “evidence demonstrates 

that the interest rate is excessive, apparently as a matter of law.” 

Under De La Torre, supra, 5 Cal.5th at page 984, 

unconscionability analysis must be based on “‘the circumstances 

of the case, taking into account the bargaining process and 

prevailing market conditions.’” And, the arbitrator had properly 

considered evidence of the parties’ bargaining process and the 

available rates in the market.

Ultimately, the trial court concluded that Le had “point[ed] 

to no evidence that would establish that, as a matter of law, the 

200% interest rates were unreasonably favorable” to Rise Credit.

IV. Appeal

Le’s timely appeal from the trial court’s order ensued.

DISCUSSION

I. Standard of review

As the parties agree, “[o]n appeal from an order confirming 

an arbitration award, we review the trial court’s order (not the 

arbitration award) under a de novo standard.” (Lindenstadt v. 

Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 892, fn. 7.)

II. The trial court applied the correct standard of review

Throughout his briefs, Le argues that the trial court erred 

by limiting “its review only to the grounds enumerated in [Code 

of Civil Procedure] § 1286.2 and therefore engaged in an overly 

and improperly deferential review of the Arbitrator’s Award.” We 

disagree.

In general, “only limited judicial review” of an arbitration 

award “is available.” (Jordan v. Department of Motor Vehicles

(2002) 100 Cal.App.4th 431, 443.) Here, the arbitration 

agreement delineates the precise scope of that limited judicial 
10

review: the parties agreed that they have “the right to judicial 

review of (a) whether the findings of fact rendered by the 

arbitrator are supported by substantial evidence and (b) whether 

the conclusions of law are erroneous under the substantive law of 

California and applicable federal law.” The trial court here 

correctly applied these standards of review.

Urging us to reverse, Le raises four objections. We reject 

each in turn.

First, the trial court did not, as Le claims, disregard the 

parties’ agreement on the scope of judicial review of an 

arbitration award. To the contrary, while the trial court began 

by describing the general principles applicable to such review 

absent any agreement, it expressly noted and adhered to the 

terms of the parties’ arbitration agreement.

Second, Le misunderstands “substantial evidence” review. 

Le insists that the trial court erroneously saw its role as 

“affirming and validating the findings of the Arbitrator,” citing a 

number of passages in which the trial court determined that the 

evidence was sufficient to support the arbitrator’s findings. But 

that, of course, is precisely what “substantial evidence” review 

requires: factual findings must be affirmed as long as the 

evidence is sufficient to support them, regardless of whether 

another factfinder might have reached a different conclusion. 

(Bowers v. Barnards (1984) 150 Cal.App.3d 870, 873–874.) And 

even if, as Le insists, the “Arbitrator’s resolution of a legal 

question is entitled to literally no weight”, Le ignores the fact 

that “while unconscionability is ultimately a question of law, 

numerous factual inquiries bear upon that question,” and the 

arbitrator’s factual findings are entitled to deference. (A & M 

Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 489.)
11

Third, to the extent Le argues for de novo review of the 

arbitrator’s factual determinations, that argument is both 

forfeited and meritless. Le never argued for independent review 

below; to the contrary, he appeared to acknowledge his need to 

show that the arbitrator “failed to make decisions supported by 

substantial evidence.” Thus, Le has thus forfeited the argument

on appeal. (See Mendoza v. Trans Valley Transport (2022) 

75 Cal.App.5th 748, 769 [“‘Appellate courts are loath to reverse a 

judgment on grounds that the opposing party did not have an 

opportunity to argue and the trial court did not have an 

opportunity to consider’”].)

In any event, even if preserved, the argument lacks merit. 

The controlling contractual language expressly provides for 

judicial review of “whether the findings of fact rendered by the 

arbitrator are supported by substantial evidence”—not, as Le 

now appears to insist, an independent judicial determination of 

the facts.

Finally, even if the trial court had somehow misunderstood 

the standard of review, that error would be harmless. As 

discussed below, the record amply supports the arbitrator’s 

award. Thus, the trial court reached the correct result. (Prickett 

v. Bonnier Corp. (2020) 55 Cal.App.5th 891, 897 [affirming where 

“any error . . . resulted in the correct result, making it ineluctably 

harmless”].)

III. The trial court properly denied Le’s petition to vacate the 

arbitration award

A. Relevant law

In De La Torre, supra, 5 Cal.5th at page 976, our Supreme 

Court reaffirmed that “[a]s with any other price term in an 

agreement governed by California law, an interest rate may be 
12

deemed unconscionable.” (Ibid.) But the mere fact that an 

interest rate is high does not demonstrate that it is 

unconscionable—after all, “[u]nsecured loans made to high-risk 

borrowers often justify high rates.” (Id. at p. 973.) Instead, “a 

court declares unconscionable only those interest rates that—in 

light of the totality of a transaction’s bargaining context—are so 

‘unreasonably and unexpectedly harsh’ as to be ‘unduly 

oppressive’ or ‘shock the conscience.’” (Ibid.) In other words,

“[s]ome measure of both procedural and substantive 

unconscionability must be present—although given the slidingscale nature of the doctrine, more of one kind mitigates how 

much of the other kind is needed.” (Id. at p. 982.)

Procedural unconscionability consists of “oppression or 

surprise.” (De La Torre, supra, 5 Cal.5th at p. 982.) “The court 

[or as here, the arbitrator] must consider whether there was 

(1) undue oppression arising from ‘an inequality of bargaining 

power,’ including the various factors tending to show relative 

bargaining power such as the parties’ sophistication, their 

cognitive limitations, and the availability of alternatives; and 

(2) surprise owing to, for example, the ‘terms of the bargain 

[being] hidden in a prolix printed form’ or pressure to hurry and 

sign.” (Id. at p. 983.) “In short, a determination of procedural 

unconscionability may well be ‘highly dependent on context.’” 

(Ibid.)

Substantive unconscionability is likewise contextdependent. (De La Torre, supra, 5 Cal.5th at p. 983.) “[I]t is not 

sufficient for a court to consider only whether ‘the price exceeds 

cost or fair value’”; the court must also consider, among other 

things, “‘the basis and justification for the price.’” (Ibid.) “If, for 

example, the interest rate is high because the borrowers of the 
13

loan are credit-impaired or default-prone, then this is a 

justification that tends to push away from a finding of 

substantive unconscionability.” (Ibid.) So too does evidence that 

“the price was set by a ‘freely competitive market.’” (Id. at 

p. 984.)

Importantly, De La Torre, supra, 5 Cal.5th at page 993 

admonished that “courts must proceed with caution in this area,”

observing that “few courts have ever declared contracts 

unconscionable,” especially “where the unconscionable term

alleged is the interest rate on a loan” (id. at p. 992). Indeed, as 

De La Torre emphasized (and as seems to remain true today

given the parties’ failure to identify any additional cases), only a 

single California appellate case—Carboni v. Arrospide (1991) 

2 Cal.App.4th 76 (Carboni)—appears to have ever found an 

interest rate unconscionable. (De La Torre, supra, at p. 992.)

In Carboni, the agreement in question—for a loan of $4,000 

that subsequently ballooned to $99,000—not only provided for a 

200 percent interest rate, but it was also secured by a deed of 

trust on a residence the borrower owned. (Carboni, supra, 

2 Cal.App.4th at p. 79.) In that case, the record established the 

requisite “oppression” to support a finding of procedural 

unconscionability: the borrower was under “emotional distress” 

stemming from medical expenses, and he “had unequal 

bargaining power because he was unable to obtain a loan from 

other sources.” (Id. at pp. 85–86.) The resulting 200 percent 

interest rate “was approximately 10 times the rate then 

prevailing in the credit market for similar loans,” thus making it 

“substantively unconscionable.” (Id. at p. 84.)
14

B. Substantial evidence supports the arbitrator’s 

determination that Le did not demonstrate unconscionability

1. Procedural unconscionability

Substantial evidence supports the finding that oppression 

and surprise were absent here.

First, Le did not prove oppression. Le is a well-educated, 

sophisticated consumer who had, and availed himself of, 

numerous market alternatives. (De La Torre, supra, 5 Cal.5th at 

p. 983 [highlighting factors “such as the parties’ sophistication, 

their cognitive limitations, and the availability of alternatives”].) 

Le has a master’s degree and advanced math training, which 

allowed him to understand the interest rates on his loans. His 

own loan history demonstrates his sophistication with Rise

Credit’s loan products: he used his ability to rescind, set his 

payment amount, and prepay without penalty. Le acknowledged 

that Rise Credit never pressured him. And Le never testified 

that Rise Credit loans caused him harm or that he would have 

preferred not to have taken them; indeed, he testified he found 

them valuable.

Second, Le did not prove surprise. In fact, in this appeal, 

he now concedes as much. That concession is warranted given 

the facts that the interest rate terms were prominently disclosed, 

Le testified he was aware of them, and the arbitrator found no 

evidence of any sharp practices.

Urging us to reverse, Le asserts that his contracts with 

Rise Credit were adhesive and presented on a take-it-or-leave it 

basis. But the mere fact that a contract is adhesive does not 

necessarily suffice to prove procedural unconscionability. 

“Whether the agreement was or was not a contract of adhesion is 

not the core question. Rather, from the standpoint of 
15

determining whether there was procedural unconscionability, the 

core issues are surprise and oppression.” (Torrecillas, supra, 

52 Cal.App.5th at p. 493.) While the “[u]nconscionability analysis 

begins with an inquiry into whether the contract is one of 

adhesion” (Armendariz v. Foundation Health Psychcare Services, 

Inc. (2000) 24 Cal.4th 83, 113, abrogated in part on another 

ground in AT&T Mobility LLC v. Conception (2011) 563 U.S. 333, 

340), “[t]he pertinent question . . . is whether circumstances of 

the contract’s formation created such oppression or surprise that 

closer scrutiny of its overall fairness is required” (OTO, L.L.C. v. 

Kho (2019) 8 Cal.5th 111, 126). Otherwise, “every form contract 

not subject to negotiation between the parties would be deemed 

oppressive, totally disregarding the undisputed ability of a

contracting party to choose to obtain that for which he bargained 

from other sources.” (Dean Witter Reynolds, Inc. v. Superior 

Court (1989) 211 Cal.App.3d 758, 769.)

Thus, whether an adhesive contract demonstrates 

oppression depends on the circumstances. Those circumstances 

do not exist here. The challenged interest rates were not buried 

in a form contract that Le was unlikely to read. (Gatton v. TMobile USA, Inc. (2007) 152 Cal.App.4th 571, 582 [“Appellate 

courts considering unconscionability challenges in consumer 

cases have routinely found the procedural element satisfied 

where the agreement containing the challenged provision was a 

contract of adhesion”].) After all, the purportedly unconscionable 

term was the central focus of the parties’ bargain—namely, the 

price.2 (See De La Torre, supra, 5 Cal.5th at pp. 982–983 

2

Even if the mere fact that these contracts were adhesive 

was enough to establish some minimal degree of procedural 
16

[making no mention of this factor in describing factors governing 

unconscionability challenges to interest rates].)

Moreover, Le’s repeated attacks on the arbitrator’s finding 

that Le had the option to “‘walk away’” from Rise Credit’s offers 

are misguided. While Le may be correct that a party can 

theoretically walk away from any adhesive contract, the ability to 

do so may undermine a finding of “oppression,” particularly 

under circumstances such as those presented here. (De La Torre, 

supra, 5 Cal.5th at p. 983.) As the arbitrator correctly noted, Le 

“clearly had other sources from which he could borrow.” While Le 

now insists that he was in “severe financial straits”, he points to 

no evidence that would have compelled the arbitrator to find that 

he faced anything like the sort of oppression confronted by the 

borrower in Carboni, supra, 2 Cal.App.4th at page 86.

Le’s contention that the circumstances of his bargain were 

“oppressive” due to his own lack of sophistication is similarly 

meritless. Again, as the arbitrator found, Le is a “well-educated” 

engineer, and he admitted that he “understands interest rates 

and understood those on his loans.” In fact, Le understood Rise

Credit’s loans well enough to take advantage of their cancellation 

and prepayment terms and avoid making substantial interest 

payments.

Furthermore, the arbitrator did not err in emphasizing the 

fact that Rise Credit did not exert any pressure on him to execute 

the loan documents. Certainly, oppression may exist when a 

unconscionability, Le’s claims would still fail. As the trial court 

recognized, Le failed to establish the high degree of substantive 

unconscionability that would be required to set aside the award 

given a “minimal to low degree” of procedural unconscionability

stemming from the contracts being adhesive.
17

lender takes advantage of its position as the sole option for a 

party under pressure from external circumstances. (See, e.g., 

Carboni, supra, 2 Cal.App.4th at p. 86.) The fact that Rise Credit 

imposed no “pressure to hurry and sign” (De La Torre, supra, 

5 Cal.5th at p. 983)—and indeed, even allowed Le to cancel his 

loans penalty free days after he had signed, as Le did on multiple 

occasions—further supports the arbitrator’s conclusion that Le 

failed to prove procedural unconscionability.

Le’s attacks on the integrity of the “‘bargaining process’” 

likewise fail. Le appears to criticize Rise Credit for not providing 

an amortization schedule, but he did not testify that he wanted 

any such schedule, much less that it would have affected his 

choice to borrow. This failure is especially pronounced 

considering the loan agreement discloses a detailed payment 

schedule. Le also argues that Rise Credit should have disclosed 

“that borrowing just a few dollars less would have saved 

[borrowers] thousands in additional interest as the rates would 

have then been capped at 30% instead of 200%.” Yet Le points to 

no evidence that Rise Credit or anyone else would have provided 

him such a loan given his credit history. Nor did Le testify that 

he would have preferred a smaller loan amount. Similarly, Le 

complains that Rise Credit advertised its loans to those who 

might seek them—e.g., high-risk borrowers. But he fails to 

explain how these mailers affected his particular transactions 

with Rise Credit (or address his testimony that he did not need a 

mailer to find or apply for a loan).

Finally, Le attempts to raise an evidentiary “dispute” 

regarding Rise Credit’s demonstrative exhibit (the slider), which 

showed the process of applying for a loan on the lender’s Web site 

at the time Le applied for his loan. Apparently hoping to set 
18

aside the arbitrator’s refusal to credit Le’s testimony that he had 

not seen the slider that allowed him to control aspects of his loan 

like the duration and loan amount, Le contends he was the “sole 

witness with personal knowledge” of what Rise Credit’s 

application procedures were when he applied for his loans. That 

is untrue: a Rise Credit witness explained that the 

demonstrative exhibit reflected precisely what Le saw when he 

applied and that he was required to choose the duration and loan 

amount before submitting the loan applications. Regardless, 

even if Le somehow had not seen the slider, it would not matter, 

as he still failed to prove any meaningful oppression.

2. Substantive unconscionability

Because Le demonstrated no procedural unconscionability, 

his claims necessarily fail. Our analysis could stop here. For the 

sake of completeness, we address, and reject, Le’s argument that 

his contracts with Rise Credit were substantively unconscionable.

As Le now “concedes,” “the rates [were] set in a competitive 

marketplace.” That alone diminishes any inference that the loan 

terms were unduly harsh. (De La Torre, supra, 5 Cal.5th at

p. 984; cf. Carboni, supra, 2 Cal.App.4th at p. 84 [emphasizing 

that the challenged rate was 10 times that prevailing marketwide 

for similar loans].)

Rise Credit’s rates also reflected the costs and risks that it

incurred when it loaned to borrowers such as Le. As the 

arbitrator found, Le “presented no evidence that his credit profile 

was one that would justify lower rates.” He had a heavy debt 

load and paid similar rates on other loans, and “[t]here is no 

wonder he was labeled a credit risk by [Rise Credit’s] algorithm.”

And, unlike the fully secured loan in Carboni, supra,

2 Cal.App.4th at page 84, Rise Credit’s loans to nonprime 
19

borrowers like Le were unsecured and carried a substantial of 

risk default. (De La Torre, supra, 5 Cal.5th at p. 983 [where 

“borrowers of the loan are credit-impaired or default-prone, then 

this is a justification that tends to push away from a finding of 

substantive unconscionability”].) The interest rates reflect the 

results of a complex underwriting process that took millions of 

dollars, scores of data analysts, and years to develop. In addition 

to these underwriting costs, the interest rates also reflected Rise

Credit’s other costs.

What is more, as the arbitrator found, Le “got value for his 

17 loans.” Le admitted as much. And because Le understood the 

terms of his loans, he controlled their costs, paying only a “small 

portion” of the overall debt he incurred in interest (approximately 

13%). Especially in these circumstances, the arbitrator had 

ample basis to find that Rise Credit’s interest rates were not 

“‘overly harsh’” or “‘so one-sided as to shock the conscience.’” 

(De La Torre, supra, 5 Cal.5th at p. 982.)

Invoking Financial Code section 22304.5, Le insists that 

while it does not apply to his loans, the 36 percent rate cap the 

Legislature subsequently imposed necessarily demonstrates that 

the interest rates on his loans were unconscionable. But as 

De La Torre made clear, “whether an interest rate is 

unconscionable is fundamentally a different inquiry than 

whether the rate exceeds a numerical cap.” (De La Torre, supra, 

5 Cal.5th at p. 976.) In other words, the Legislature’s decision to 

impose a “bright-line rule policing a single facet of loan 

agreement” (ibid.) does not demonstrate, as Le suggests, that 

Rise Credit’s interest rates in its loans to Le were unconscionable 

as a matter of law.
20

Le likewise cannot prevail here by contending that the 

price of Rise Credit’s loans so far exceeded the lender’s costs as to 

render them unconscionable. Le focuses exclusively on Rise

Credit’s “cost of borrowing,” which he asserts ranged “from 10–

13%.” He cites testimony that the interest rate at which Rise 

Credit borrowed from other lenders in 2019 was “around 

13 percent.” Yet Le ignores the fact that Rise Credit’s cost of 

borrowing was only one of its costs. (De La Torre, supra, 

5 Cal.5th at p. 983.)

Nor can Le convert one of these costs—the high risk of 

default—into an argument that Rise Credit’s interest rates 

reflecting that default risk are unconscionable. Again, as 

De La Torre recognized, where “the interest rate is high because 

the borrowers of the loan are credit-impaired or default-prone, 

then this is a justification that tends to push away from a finding 

of substantive unconscionability.” (De La Torre, supra, 5 Cal.5th 

at p. 983.)

Moreover, Le’s contention that it is “undisputed that these 

loans are built to fail” is belied by the record. That 30 percent of 

borrowers end up defaulting does not mean that Rise Credit aims 

for or desires a 30 percent default rate.

Similarly, Le is wrong to insist that the fact that Rise 

Credit purportedly “steered” borrowers to non-rate-capped loans 

above $2,500 “cuts dispositively against any argument that the 

interest rate is a product of the riskiness” of borrowers like Le. 

Le points to nothing in the record that Rise Credit could or did 

profitably offer loans below $2,500 at a capped interest rate, or 

that contradicts the lender’s evidence establishing that interest 

rates on the loans it did offer reflect the risk of these loans.
21

Furthermore, Le cannot demonstrate that he was entitled 

to lower rates because he was “a particularly diligent borrower” 

who repaid his loans. Again, Le fails to direct us to any evidence 

in the record demonstrating that the weight given to payment 

history in Rise Credit’s underwriting model was improper, that 

the arbitrator was wrong to find that there was “no wonder” that 

Le was labeled a credit risk, or that otherwise compelled a 

finding that the rates charged Le based on his actual credit 

history were “so ‘unreasonably and unexpectedly harsh’ as to be 

‘unduly oppressive’ or ‘shock the conscience.’” (De La Torre, 

supra, 5 Cal.5th at p. 973.)

The many nonbinding, out-of-jurisdiction cases3 that Le 

relies upon do not compel a different conclusion. Aside from 

being factually distinguishable, Le offers us no reason to 

disregard our own Supreme Court. (Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455.)

Finally, Le’s reliance upon a trial court’s proposed 

statement of decision in a still-pending case involving a different 

plaintiff, a different lender, and different loan products, 

De La Torre v. CashCall, Inc., No. 19CIV01235 (San Mateo 

Super. Ct. Nov. 17, 2022) is misplaced. Aside from the fact that 

that case has zero precedential value, it utterly lacks persuasive 

3

James v. National Financial, LLC (Del.Ch. 2016) 132 A.3d 

799, 837; State ex rel. King v. B&B Investment Group, Inc. (N.M. 

2014) 329 P.3d 658, 662, 667; Daye v. Community Financial Loan 

Service Centers, LLC (D.N.M. 2017) 280 F.Supp.3d 1222, 1253–

1255; Capital Loan Corp. v. Platero (Navajo Dt. Ct., Jan. 25, 

2000, No. 2000 CP-CV-001); Drogorub v. Payday Loan Store of 

WI, Inc. (Wis.Ct.App. 2012, Dec. 18, 2012, No. 2012AP151) 2012 

WL 6571696, at p. *4.
22

value. That a court found different loan products to different 

plaintiffs made by a different lender both procedurally and 

substantively unconscionable sheds no light on whether Rise 

Credit’s loans to Le were unconscionable.

DISPOSITION

The order is affirmed. Elevate and Rise Credit are entitled 

to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT