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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

,

Defendant s and Respondents

. B 3 1 9914

(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 f

or 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 cancell ing these loans or pa ying 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 petition ed 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 highl y 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 commen surate 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. It s interest rates also reflect its other costs, including: (1) origination costs (including advertising, underwri ting, 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 u nderwriting 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 righ t 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 agree ment, 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 cr eate 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 provides4

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.”
I I I. 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

- tim e 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 th e 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 l oans 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 fam ily members,” he5

has never identified “any medical urgency or other necessities of life for which he needed money.”
I V

. Legislature adopts a rate cap after Le originated his loans In 2020, the California Legislature amended the Finance Code to prelude len ders 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, Ri se 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 d oes 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 t he 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

presen ted 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 ne ver saw the “slider” regarding his loans

.6 After a multiday hearing, the a rbitrator issued a detailed
26

- page award , finding the interest rate in this case “shockingly high,” but rejecting Le’s claim that th e rate w as unconscionable.
As relevant here, the a rbitrator 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 a rbitrator 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 a rbitrator determined that Le’s sophisticated borrowing practices, including his prompt payments and cancel l ations, sometimes “depriv[ed] the lend[er] of the full fruits (interest) of their bargain.” Le “ understood that these were expensive loans, and he u nderstood 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 a rbitrator found, Le “has no debt now,” and there was “no showing he used one loan to pay off
another n or 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 ter ms of his loans, t he

a rbitrator expressly found him not credible.
T he a rbitrator 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.5th7

966 ( De La Torre ) , “the leading case on the issue,” to the particular facts here. First, the a rbitrator found that the circumstances of Le’s transactions evinced no significant degree of procedural unconscionability. T here was “no oppression,” as Le “is a well

educated 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.” The re also was “no duress” or “sharp practices,” emphas izing 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

aw are of the loan terms, and he kept coming back knowing them
as well.” Second, the a rbitrator 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

a rbitrato r explained, “ultimately fail [ ed ] to speak to the particulars of this borrower and his circumstances.” While the

a rbitrator 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 a rbitrator 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] near8

what they would have been if taken to term.” Accordingly, “[a]t
all relevant t imes, 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 a rbitrator exc eeded “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 explai ning that, given the judicial review provision of the parties’ arbitration agreement, it s 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

a rbitrator’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 ) , i t 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
unconsciona ble.” “ A t 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.”
U nder 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 a rbitra tor had properly considered evidence of the parties’ bargaining process and the
available rates in the market. Ultimately, t he trial court concluded that Le had “point[ed] to no evidence that would establish that, as a matter of law, the
200% interest rate s 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 cou rt’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 cour t erred by limiting “ its review only to the grounds enumerated in [Code
of Civ il Proc edure ] § 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” o f 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 judicial10

review: the parties agreed that they have “the right t o 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 cour t here correctly applied these standards of review. Urging us to reverse, Le raises four objections. We reject
each in turn. First, t he trial court did not, as Le claims, disregard the parties’ agreement on the scope of judicial review of an
arbitration a ward. 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 “substanti al 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 a rb itrator’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 diff erent 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

a rbit r ator’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 t he

a rbitrator’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 a rbitrator “failed to make decisions supported by

su bstantial 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 opportun ity 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 a rbitrator’s
award . T hus

, 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”].)
I II

. 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 be12

deemed unconscionable.” ( Ibid .) But t he 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 hig h 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 con science. ’ ” ( Ibid .) In other words, “[s]ome measure of both procedural and substantive unconscionability must be present

— although given the sliding

scale 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 a rbitrator ] must consider whether there was (1) undue oppression arising from ‘ an inequality of bargaining

po wer, ’ 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 context

dependent. ( 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 the13

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
“t he 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
unconscion able,” 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 Cali fornia 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 balloone d 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 sup port 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 p p. 85

– 86.) The resulti ng 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 pe nalty. 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 surpr ise. 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 a rbitrator found no evidence of any sharp practices.
U rging 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.

“ W hether the agreement was or was not a contract of adhesion is not the core question. Rather, from the standpoint of15

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 LL C 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.5 th 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, w hether an adhesive contract demonstrates oppression depends on the circumstances. Those circumstances do not exist here. The challenged interest rates were not burie d in a form contract that Le was unlikely to read. ( Gatton v. T

Mobile 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 wa s the central focus of the parties’ bargain

— namely , the price. 2 (See De La Torre

, supra , 5 Cal.5th at pp. 982

– 983

2 E ven if the mere fact that these contracts were adhesive was enough to establish some minimal degree of procedural16

[making no men tion of this factor in describing factors governing unconscionability challenges to interest rates].)
Moreover , Le’s repeated attacks on the a rbitrator’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 th e arbitrator correctly noted, Le “clearly had other sources from which he could borrow.” W hile Le now insists that he was in “severe financial straits”, he points to no evidence that would have compelled the a rbitrator 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 a rbitrator f ound, 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 m aking 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

uncons cionability, 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 pos ition as the sole option for a party under pressure from external circumstances. ( See, e.g.,
Carboni

, supra , 2 Cal.App.4th at p. 86.) T he 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 support s the a rbitrator’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 pron ounced 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
hav e 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

c omplains 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 W eb site at the time Le applied for his loan

. Apparently hoping to set18

aside the a rbitrator ’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 t o choose the durat ion 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.
A s 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

a rbitrator found, Le “presented no evidence that his credit profile
was one that w ould 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 p age 84 , Rise Credit ’s loans to nonprime19

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 te nds 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 a rbitrator 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 “s mall portion” of the overall debt he incurred in interest (approximately
13 % ). Especially in these circumstances, the a rbitrator had ample basis to find that Rise Credit ’s interest rates were not

“ ‘ overly harsh ’ ” or “ ‘ so one

- sided as to shock the conscien ce. ’ ” ( De La Torre

, supra , 5 Cal.5th at p. 982.) Invoking Financial Code section 22304.5, Le insist s that while it does not apply to his loans, the 36 percent rate cap the Legislature subsequently imposed necessarily demonstrates that
the interest rates o n 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, t he Legislature’s decision to impose a “bright

- line rule policing a single facet of loan agreement” ( ibid .) does not demonstrate, as Le suggest s , 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 credi t

- 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 f

ail” 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 n on

- 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 particula rly diligent borrower” who repaid his loans. Again, Le fails to direct us to any evidence
in the record demonstrat ing that the weight given to payment history in Rise Credit ’s underwriting model was improper, that
the a rbitrator was wrong to find that the re 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 cases 3 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.)
F inally, 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 L a 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 plaint iffs 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. El evate 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