Juen v. Alain Pinel Realtors, Inc.Annotate this Case
Plaintiff engaged Pinel to sell his Danville home in 2008. In 2015 he filed a putative class action lawsuit on behalf of California residents who, in 2004-2011, used Pinel to buy or sell a home in California and had utilized TransactionPoint, Fidelity's real estate software program, alleging Pinel had entered into unlawful sublicensing agreements with Fidelity subsidiaries, allowing those entities to contract their settlement services to Pinel clients using TransactionPoint, and the Fidelity defendants paid unlawful sublicensing fees to Pinel for the TransactionPoint-generated business. The defendants cited the arbitration clause in plaintiff’s listing agreement, which contained a notice provision required by Code of Civil Procedure 1298(c) with spaces for the client’s and broker’s initials. Pinel produced a copy of plaintiff's listing agreement. The 1298(c) notice on the copy showed plaintiff’s initials; the space for Pinel’s initials was blank. Pinel submitted a declaration that the original listing agreement was destroyed in accordance with Pinel’s normal document retention policy; that the copy was obtained from the listing agent; that it was Pinel’s policy to allow a client to elect whether to assent to the arbitration provision by initialing paragraph 19B; that Pinel “would as a matter of policy and custom and practice adopt the election of the client and initial Paragraph 19B.” The court of appeal affirmed the denial of Pinel’s motion. Pinel failed to establish that it had initialed the arbitration provision. The language of that provision contemplated mutual agreement and that each would indicate assent by initialing the provision.