Fisher v. MoneyGram International, Inc.

• Court: California Court of Appeal
• Decided: July 27, 2021
• Docket: A158168
• Status: Published

Opinion

Filed 6/29/21; Certified for Publication 7/27/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR JONATHAN FISHER, Plaintiff and Respondent, A158168 v. (Alameda County Super. Ct. MONEYGRAM INTERNATIONAL, No. RG19009280) INC., Defendant and Appellant.

In this case we assess the validity of an arbitration provision in a consumer adhesion contract that reduces the length of the statute of limitations, invokes the application of the arbitrators’ higher commercial fees, and requires consumers to bear their own costs and fees for experts and attorneys. We conclude the arbitration provision is unconscionable largely because it was hidden on the back side of a money transfer order form, in tiny 6-point print that we deem virtually illegible. Because the arbitration provision operated largely to benefit defendant MoneyGram International, Inc. (MoneyGram) at plaintiff Jonathan Fisher’s expense, we affirm the

superior court’s order denying MoneyGram’s petition to compel arbitration. I. BACKGROUND

A. The MoneyGram Transactions and the Arbitration Provision

MoneyGram is a global financial company that enables customers to transfer money to various locations in the United States and around the world. Consumers can make MoneyGram transactions online, through a mobile platform or kiosk, or at an agent location in retail stores such as Walmart.

On February 17 and 18, 2016, Jonathan Fisher, a 63-year-old Vietnam War-era Veteran with poor eyesight, initiated money transfers at two different Walmart stores in California, the first for $2,000 to a recipient in Rockmart, Georgia, and the second for $1,530 to a recipient in Baton Rouge, Louisiana. In order to proceed with the transactions, Fisher was required to complete a MoneyGram Money Transfer Form (Send Form), which requests information regarding the sender, amount to be sent, receiver, destination and receiving options. MoneyGram processed Fisher's money transfer requests, and the funds were delivered to the intended recipients. On neither of these occasions did Fisher turn over the Send Form and try to read the Terms and Conditions on the reverse, which included an arbitration requirement (Arbitration Provision). But even if he had tried to read the tiny print, he would not have been able to do so—even wearing his trifocal glasses—at least not without a magnifying glass.

The Arbitration Provision is reproduced below, and in a larger context,

in the appendices to this opinion: !

! An actual-size reproduction of the full Terms and Conditions examined by Fisher’s expert witness, whose testimony we discuss below, is attached as appendix A. An English-language version of the Terms and Conditions filed by MoneyGram in superior court is attached as appendix B. (See fn. 2, post.) Both appendices include a ruler to establish the paper size ARBITRATION, UNLESS OTHERWISE SPECIFIED BY APPLICABLE LAW, ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING 10 THE TRANSFER, THE AGREEMENT OR BREACH OF THIS AGREEMENT, INCLUDING STATUTORY CONSUMER CLAIMS, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") UNDER ITS COMMERCIAL ARBITRATION RULES. JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF, ANY SUCH ARBITRATION SHALL BE INITIATED AND HELD IN THE OFFICE OF THE AAA CLOSEST TO THE AGENT LOCATION WHERE YOU INITIATED THE TRANSFER, EACH PARTY SHALL BEAR ITS OWN COSTS AND FEES FOR EXPERTS AND ATTORNEYS, AND NO PARTY SHALL HAVE 4 RIGHT TO PARTICIPATE AS A MEMBER OF ANY CLASS OF CLAIMANTS. THIS EXCLUSIVE ARBITRATION REMEDY SHALL NOT BE AVAILABLE UNLESS INITIATED WITHIN ONE YEAR AFTER THE CONTROVERSY OR CLAIM AROSE,

B. The Lawsuit Fisher sued MoneyGram in March 2019, claiming that the two money

transfers he completed in February 2016 were induced by a “scammer,” and that MoneyGram knew its system was used by scammers but failed to warn or protect Fisher from “the scheme he had fallen victim to.” The scheme was for the scammer to promise the victim a large sum of money (lottery winnings, inheritances, grants, loans or other financial benefits) if only the victim would send a comparatively small sum to the scammer, said to represent taxes, import fees, or some other concocted story.

Fisher alleged that MoneyGram’s funds transfer service was used frequently in fraudulent transactions because under MoneyGram’s policies the money would be immediately available upon transfer to the scammer at a Walmart store or other MoneyGram outlet. Other money transfer services, such as bank transfers, place a temporary hold on the funds to discourage or prevent fraudulent transactions. In fact, Fisher alleged, MoneyGram was so remiss in protecting its customers from fraud that it had been the subject of a Federal Trade Commission (FTC) permanent injunction since October 21, 2009, requiring it to establish, implement, and maintain a comprehensive anti-fraud program to protect its consumers. (Federal Trade Commission v. MoneyGram International, Inc. (N.D.II., Oct. 21, 2009, No. 09-cv-6576) ECF No. 13.) But Fisher claims MoneyGram failed to abide by the injunction.

of the original even if publishing constraints should require resizing. In appendix B, the original document included a Spanish translation in a second column, making the block of print twice as wide as the appendix indicates. The complaint alleges that MoneyGram (1) failed to disclose “fraud occurring via its service[s]” as well as information necessary to detect and avoid such fraud; (2) knew that its system was being used to defraud consumers and failed to take steps to protect such consumers; and (38) failed to comply with the FTC order enjoining such steps be taken. Based on these allegations, Fisher purports to represent a class of “all other similarly situated persons who transferred money while in California using MoneyGram’s money transfer service pursuant to a fraudulent scheme... since October 20, 2009.” The complaint asserts one cause of action under the unfair competition law (UCL). (Bus. & Prof. Code, § 17200 et seq.) The complaint seeks restitution, injunctive and declaratory or other equitable relief, as well as attorney fees and costs under Code of Civil Procedure section 1021.5.

C. The Petition To Compel Arbitration In May 2019, MoneyGram petitioned to compel arbitration, and Fisher

opposed the petition, arguing the agreement to arbitrate was invalid for two reasons. First, Fisher argued that no agreement to arbitrate was formed because MoneyGram did not obtain Fisher’s informed consent to its terms. Second, Fisher argued that the Arbitration Provision was unenforceable because it was both procedurally and substantively unconscionable. In reply, MoneyGram contended that a valid agreement to arbitrate existed with no procedural or substantive unconscionability. MoneyGram also requested that the court sever any provisions deemed unenforceable.

On August 16, 2019, Judge Winifred Y. Smith of Alameda County Superior Court held a hearing and issued a written order denying MoneyGram’s petition to compel arbitration. The court ruled the Arbitration Provision was unenforceable as both procedurally and substantively

unconscionable, and it declined to sever any provision. The court ruled, first, that the Arbitration Provision’s “6 point font,” placement “on the back side of the Send Form,” and “take it or leave it nature” were “indication[s]” of procedural unconscionability. Second, the court ruled that the Arbitration Provision’s “one year statute of limitations,” “requirement that any plaintiff pay the [American Arbitration Association (AAA)] commercial arbitration costs and fees,” and the “waiver of attorneys’ fees” were substantively unconscionable “in the aggregate,” and that it “could not sever these three provisions because to do so would make material changes in the agreement as a whole.”

Given its ruling on the unconscionability issue, the court did not address Fisher’s additional argument that no valid contract had been formed. (See Domestic Linen Supply Co., Inc. v. L J T Flowers, Inc. (2020)

58 Cal.App.5th 180, 185 [court held no arbitration agreement had been formed where arbitration clause was buried in a “thicket of fine print” on a back page of the contract, after the signature line].)

MoneyGram appealed. (Code Civ. Proc., § 1294, subd. (a).)

II. DISCUSSION A. What the Contract Says

For those who had trouble reading the Arbitration Provision as presented to Fisher and replicated above, we quote the text again in our normal 13-point typeface:

“ARBITRATION. UNLESS OTHERWISE SPECIFIED BY

APPLICABLE LAW, ANY CONTROVERSY OR CLAIM ARISING

OUT OF OR RELATING TO THE TRANSFER, THE

AGREEMENT OR BREACH OF THIS AGREEMENT,

INCLUDING STATUTORY CONSUMER CLAIMS, SHALL BE

SETTLED BY ARBITRATION ADMINISTERED BY THE

AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER ITS COMMERCIAL ARBITRATION RULES. JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. ANY SUCH ARBITRATION SHALL BE INITIATED AND HELD IN THE OFFICE OF THE AAA CLOSEST TO THE AGENT LOCATION WHERE YOU INITIATED THE TRANSFER. EACH PARTY SHALL BEAR ITS OWN COSTS AND FEES FOR EXPERTS AND ATTORNEYS, AND NO PARTY SHALL HAVE A RIGHT TO PARTICIPATE AS A MEMBER OF ANY CLASS OF CLAIMANTS. THIS EXCLUSIVE ARBITRATION REMEDY SHALL NOT BE AVAILABLE UNLESS INITIATED WITHIN ONE YEAR AFTER THE CONTROVERSY OR CLAIM AROSE.” This, then, is the contract that Judge Smith refused to enforce because she found it both procedurally and substantively unconscionable.

B. Unconscionability Doctrine and the Standard of Review

1. Unconscionability doctrine

92 9 99 coe 6

“*“Unconscionability’ ’” is commonly defined as an absence of

meaningful choice on the part of one of the parties together with contract

999 99

(Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910 (Sanchez).)

Unconscionability, as the definition suggests, has both a procedural and a

terms which are unreasonably favorable to the other party.

substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. (Carlson v. Home Team Pest Defense, Inc. (2015) 239 Cal.App.4th 619, 630 (Carlson).) “‘ “The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of

unconscionability. ([bid.) But they need not be present in equal parts. ([bid.) Rather, California courts employ a sliding scale to determine unconscionability, the more substantively oppressive the contract terms, the less evidence of procedural unconscionability is required to conclude the terms are unenforceable, and vice versa. (/bid.; see Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz).)

The unconscionability defense has been recognized by the United States Supreme Court as a general contract defense in California, and therefore a defense to an agreement to arbitrate. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 341-343; see De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 978-979.) Applying the unconscionability defense to an arbitration agreement in California is not preempted by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.). (OTO, L.L.C. v. Kho (2019)

8 Cal.5th 111, 125 (OTO); Sanchez, supra, 61 Cal.4th at p. 921.)

2. The standard of review

In deciding a petition to compel arbitration, “the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) An “order denying a petition to compel arbitration, like any other judgment or order of a lower court, is presumed to be correct, and all intendments and presumptions are indulged to support the order on matters as to which the record is silent.” (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 88 (Gutierrez).)

““There is no uniform standard of review for evaluating an order denying a motion to compel arbitration. [Citation.] Ifthe court’s order is based on a decision of fact, then we adopt a substantial evidence standard.

[Citations.] Alternatively, if the court’s denial rests solely on a decision of law, then a de novo standard of review is employed.” (Carlson, supra, 239 Cal.App.4th at p. 630.) If material facts are in dispute, “ ‘we presume the court found every fact and drew every permissible inference necessary to support its judgment.” ([bid.)

Because unconscionability is a defense to enforcement of a contract, the party challenging the contract has the burden of proof. (OTO, supra, 8 Cal.5th at p. 126; Sanchez, supra, 61 Cal.4th at p. 911.) The ultimate determination of unconscionability, however, is an issue of law, not fact. (Civ. Code, § 1670.5, subd. (a); Gutierrez, supra, 114 Cal.App.4th at p. 89.) Thus, “ ‘[a]bsent conflicting extrinsic evidence, the validity of an arbitration clause, including whether it is subject to revocation as unconscionable, is a

question of law subject to de novo review.” (Swain v. LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59, 66; see Carlson, supra, 239 Cal.App.4th at p. 630.)

But factual issues may bear on that determination. “‘ “Thus, to the extent the trial court’s determination that the arbitration agreement was unconscionable turned on the resolution of conflicts in the evidence or on factual inferences to be drawn from the evidence, we consider the evidence in the light most favorable to the trial court’s ruling and review the trial court’s factual determinations under the substantial evidence standard.”’” (Swain

v. LaserAway Medical Group, Inc., supra, 57 Cal.App.5th at pp. 65-66.)

C. Procedural Unconscionability To determine whether an arbitration provision satisfies the “ ‘procedural element of unconscionability,’ ” courts focus on “ ‘two factors: oppression and surprise.” (Carlson, supra, 239 Cal.App.4th at p. 631.) Oppression arises from an inequality of bargaining power which results in no

ce

real negotiation and “ ‘an absence of meaningful choice.” (/bid.) Surprise

involves the extent to which “the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms.” (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.) A showing of either oppression or surprise may render a contract procedurally unconscionable. (Gutierrez, supra, 114 Cal.App.4th at p. 89, fn. 8 [oppression not required if surprise proven]; Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281 [surprise not necessary if oppression shown].)

1. Oppression

a. The Arbitration Provision was an adhesion contract

The analysis of oppression begins with an examination of the contract itself to determine whether it is a contract of adhesion. An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power “ ‘on a take-it-or-leave-it basis,” such as the MoneyGram Send Form. (See OTO, supra, 8 Cal.5th at p. 126.) Here, there can be no doubt that an adhesive contract has been proven. Fisher had no bargaining power in the transaction. He was presented with the preprinted Send Form to fill out and sign, with no opportunity to negotiate. The trial court did not make an express finding that the Arbitration Provision was a contract of adhesion, but such a finding is unavoidable.

The fact that the Arbitration Provision is an adhesion contract does not by itself render it unenforceable as unconscionable. (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 179.) An adhesive contract does, however, establish at least some degree of procedural unconscionability and requires us to “ ‘scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided.” (Sanchez, supra,

61 Cal.4th at p. 915.) b. Fisher was not required to prove a lack of market alternatives

MoneyGram insists a finding of procedural unconscionability requires more, that “[o]ppression refers not only to an absence of power to negotiate the terms of a contract, but also to the absence of reasonable market alternatives.” (Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1320 (Morris).) The “ ‘oppression’ factor of the procedural element of unconscionability may be defeated, if the complaining party has a meaningful choice of reasonably available alternative sources of supply from which to obtain the desired goods and services free of the terms claimed to be unconscionable.” (Dean Witter Reynolds, Inc. v. Superior Court (1989)

211 Cal.App.3d 758, 772; Morris, supra, 128 Cal.App.4th at pp. 1319-1320.)

MoneyGram argues that the superior court erroneously relied on cases involving employment contracts in determining that the Arbitration Provision was procedurally unconscionable, and that consumer contracts are different. MoneyGram insists the fact that Fisher had a choice of service- providers in the funds transfer business gave him a “meaningful choice” that prevents us from finding Fisher was a victim of oppression. MoneyGram distinguishes this case from the situation where a patient needs a hospital (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 94, 99-100 & fn. 13), or an employee is faced with joblessness if he or she refuses to sign an adhesive contract (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071 [arbitration appeal provision tending to favor employer was unconscionable]; Armendariz, supra, 24 Cal.4th at p. 115 [“the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement’ ]). In such dire situations the plaintiff cannot be expected to “shop around” for an alternative bargain. (Morris, supra, 128 Cal.App.4th at p. 1320.) Butina

less pressured commercial environment, such as the money transfer business,

10 MoneyGram argues Fisher was required to prove a lack of market alternatives. There is no evidence in the record as to the existence or nonexistence of market alternatives with more favorable contract terms.

Our reading of MoneyGram’s cited cases suggests this “meaningful choice” rationale is employed only where surprise is not seriously in issue, and the plaintiff relies solely on the defendant’s use of an adhesion contract to show procedural unconscionability. For instance, in Wayne v. Staples, Inc. (2006) 135 Cal.App.4th 466, the price charged for insurance coverage on shipping was plainly posted, no surprise could be claimed, so the availability of other shipping services not requiring insurance purchase precluded a finding of procedural unconscionability. (Ud. at pp. 481-482.) “There can be no oppression establishing procedural unconscionability, even assuming unequal bargaining power and an adhesion contract, when the customer has meaningful choices.” (Ud. at p. 482; see, e.g., Morris, supra, 128 Cal.App.4th at p. 1321 [clear heading in contract identified bank’s account termination fee]; Dean Witter Reynolds, Inc. v. Superior Court, supra, 211 Cal.App.3d at p. 772 [“termination fee [was] not shown to have been hidden from him to such an extent... as to establish the ‘surprise’ factor of the procedural element of unconscionability”]; Darnaa, LLC v. Google, Inc. (N.D.Cal., Dec. 2, 2015, No. 15-cv-03221-RMW) 2015 U.S.Dist. Lexis 161791, pp. *7—*8 [YouTube’s Terms of Service created only “marginal” procedural unconscionability where the terms were not hidden and performer had other means of publicizing her music video].)

In the present case, however, the Terms and Conditions were hidden on the back of the MoneyGram Send Form, and the Arbitration Provision was obscured by placement within a dense block of mostly undifferentiated text

that Fisher could not read even with trifocal lenses. (See appen. A.)

11 Contrary to MoneyGram’s suggestion, Fisher was not required to show the absence of market alternatives to establish procedural unconscionability because he had solid evidence of surprise.

In such circumstances, “evidence that one party has overwhelming bargaining power, drafts the contract, and presents it on a take-it-or-leave-it basis is sufficient to demonstrate procedural unconscionability and require the court to reach the question of substantive unconscionability, even if the other party has market alternatives.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 109 [loan at allegedly unconscionable interest rate]; Gutierrez, supra, 114 Cal.App.4th at p. 89, fn. 8 [the existence of market alternatives is irrelevant where procedural unconscionability is based on surprise]; Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1100 [availability of alternative providers may be relevant to whether contract is adhesive, but “not the deciding factor” and not “the relevant test for unconscionability’].) Thus, we distinguish the cases cited by MoneyGram for its “meaningful choice” argument and decline to require such a showing by Fisher.

2. Surprise

a. The Arbitration Provision: point size, typeface, and spacing

Fisher produced in opposition to MoneyGram’s petition to compel arbitration a written report by Thomas W. Phinney as an expert witness on typography, typeface identification, and point size, retained to assess point size and legibility of the Arbitration Provision. Phinney had an M.S. degree in graphic arts publishing and more than 20 years’ experience working in the typography field. Phinney examined the Arbitration Provision provided to him by Fisher’s attorneys and concluded it was virtually illegible based on a confluence of tiny print, faint contrast, thin characters, narrow spacing of

words and lines, and exceptionally long lines with practically no margins.

12 (See appen. A.) Phinney analyzed the typography of the Arbitration Provision in detail, and we accept his expert opinion for its assistance in

assessing the readability of the Arbitration Provision. ?

2 Disagreement emerged in the trial court concerning whether Phinney examined the same version of the Send Form that Fisher signed in 2016. Fisher submitted a declaration that the copy of the Send Form furnished him by counsel (the same version examined by Phinney, attached as appen. A) appeared, so far as he could recall, “similar to the way the... Form looked in 2016” when he made the transfers at issue. That form however, had been retrieved from a MoneyGram outlet in July 2019. MoneyGram submitted a different version of the Send Form attached to the declaration of its Legal Affairs Manager, which it identifies as a “true and correct” blank copy of the version signed by Fisher in 2016 (the English-only version of which is attached as appen. B). The version submitted by MoneyGram is visibly longer than the version examined by Phinney. The trial court did not resolve this dispute in its order denying the petition to compel arbitration or elsewhere in the record.

In October 2020, Fisher filed a motion in this court asking us to take evidence on this issue in the form of a right-sized version of the 2016 Send Form. In Fisher’s briefing, he accuses MoneyGram of submitting to the trial court an enlarged copy of the Terms and Conditions. MoneyGram admits in its response to Fisher’s motion that it enlarged the copy of the Terms and Conditions it submitted to the trial court, claiming this was necessary to prevent the substance of the agreement from being “illegible” for the court due to expected degradation in the copying process. The result is that the record contains no right-sized version of the 2016 Send Form. MoneyGram denies an intention to mislead the court, but having to enlarge the agreement to make it legible is a problem in itself in a case like this. Submitting to the trial court a declaration calling this a “true and correct” copy in a case where procedural unconscionability is at issue, largely as a function of font size, may raise ethical concerns better dealt with in the trial court.

We deny the motion for new evidence as one rarely granted and so that this dispute may finish playing out in the trial court. We accept appendix B as a true copy of the substance of the Terms and Conditions in 2016. We do not, however, accept appendix B as a true-to-size copy of the Terms and Conditions. For purposes of this appeal, we accept appendix A as more accurately reflecting the size of the block containing the Terms and

13 We describe in words what is easier to grasp visually. The MoneyGram Send Form was a bi-fold pamphlet printed on both sides of a 17-inch by 8.5-inch piece of paper, then folded to consist of four pages, each measuring 8.5 inches by 8.5 inches. The Terms and Conditions, including the Arbitration Provision, were on the back side of the form. All the pertinent information to be filled out by the consumer about the transaction was on the front side. The trial court found, and MoneyGram admits, the Arbitration Provision is printed in 6-point type. The terms appear in two columns, the left in English and the right in Spanish. The columns are jammed together in the 8.5-inch by 8.5-inch square with scant margins either between or on the sides. (See appen. A.) Phinney identified the font as Myriad Pro Light Condensed, which is light in contrast with exceptionally narrow characters. At oral argument, MoneyGram’s attorney said she did not dispute this font identification. Phinney concluded, the “Light Condensed style of Myriad... is not a great choice for legibility in general and it is particularly problematic at small sizes.” (See appen. A.)

Phinney also noted the spacing between lines of text is smaller than typical. Default line spacing for 6-point Myriad Pro Light Condensed in programs such as Adobe InDesign and Microsoft Word is 7.2 points. MoneyGram reduced the line spacing of the Arbitration Provision to 6.4 points. The terms of the Arbitration Provision consequently have just one-

third the space between lines that is provided by default in Word or

Conditions, and as reflecting the size of the typeface itself, and the general appearance of the document. MoneyGram admits in briefing and confirmed at oral argument that the font size of Fisher’s contract was 6 points. To the extent appendix B has new or different wording, it bears on portions of the Terms and Conditions other than the Arbitration Provision, which is identical in both versions.

14 InDesign. Phinney calculated that a regular letter-size page with the text parameters of MoneyGram’s Terms and Conditions would hold approximately 4,000 words, or some eight times the number on the same size page with normal type size and format. Phinney summarized, “the Terms & Conditions may be the most challenging-to-read original document I have encountered in my professional work’ in more than 20 years of experience in the font industry. He concluded presentation of MoneyGram’s Arbitration Provision in the Terms and Conditions is “a strikingly egregious example of typesetting ...1n disregard of legibility and approachability.”

b. Illegible typeface point size: MoneyGram’s position

Fisher’s declaration establishes that he has poor vision and could not read the Terms and Conditions without the aid of a magnifying glass. MoneyGram attempts to counter Fisher’s evidence of surprise with federal district court case law holding that an arbitration provision will be enforced if it is in the same point size as the rest of the agreement.? Such reasoning necessarily has its limits. The cases cited by MoneyGram are premised on both contracting parties realizing the entire agreement exists and having had an opportunity to review it. In Fisher’s case, his declaration indicates he did

not turn over the Send Form and made no attempt to read the Terms and

3 MoneyGram cites Bauer v. Atlantis Events, Inc. (C.D.Cal., Mar. 5, 2014, No. CV 13-05290 SJO (JCx)) 2014 WL 12603112, page *3 (plaintiffs did not allege or prove surprise); Levine v. Millennium Trust Co., LLC (S.D.Cal., Jan. 24, 2013, No. 12cv2210 JM (JMA)) 2013 WL 12157579, page *4 (applying Illinois law; disputed provision was “not hidden in a maze of fine print”); and ERG Res., LLC v. CSD Eng’g, Inc. (C.D.Cal., July 26, 2011, Nos. 11-cv-03966 SVW (Ex), 11-cv-04930 SVW (Ex)) 2011 U.S. Dist. Lexis 164551, page *10, 2011 WL 13220321, page *4 (not a consumer contract; “ERG is a large company that is capable of defending itself in contract negotiations’).

15 Conditions before completing the funds transfers. MoneyGram’s argument, taken to the limit of its logic, would appear to be, because the Arbitration Provision appears in exactly the same typeface, point size and spacing as the rest of the Terms and Conditions, it is shielded from operation of the doctrine of unconscionability, no matter how small or illegible the print.

We cannot agree with such reasoning, for surely the size of the typeface has much to do with how legible the document is and therefore how “surprised” the consumer might be to learn what it says. When the entire agreement is printed on the back side of the Send Form in a size too small to read without a magnifying glass, the idea that the size of the other terms justifies the size of the Arbitration Provision must be rejected. Deliberately choosing a tiny, difficult to read typeface must have some bearing on whether the party with superior bargaining power has taken unfair advantage of its contracting counterpart. As Judge Smith found, the font size is a “significant factor’ in the unconscionability determination.

MoneyGram admits the Arbitration Provision is in 6-point type but claims there is no minimum point size for arbitration agreements, and any such rule this court might adopt would be preempted by the FAA. We announce no such across-the-board rule, but we do observe in this case that 6-point typeface is extremely difficult to read and contributes significantly to the surprise element we find here.

c. Illegible typeface point size: statutes and rules of court

As illustrated on page 3, ante, 6-point type is exceedingly small. Some comparisons of type sizes regulated by statute or otherwise are useful to establish a baseline expectation for legibility. For instance, the Judicial Council of California, for practice in the Court of Appeal, has decided that 13-point typeface is most legible (Cal. Rules of Court, rule 8.204(b)(4)), while in the trial courts 12-point type is minimally acceptable (id., rule 2.104).

16 Judge Smith, in her order denying MoneyGram’s petition, listed several California statutes requiring “minimum font sizes” larger than 6-point “for various consumer purposes,” including retail installment contracts (Civ. Code, § 1803.1 [8-point]), gift certificates (Civ. Code, § 1749.5 [10-point]), written statements to prospective borrowers (Fin. Code, § 22603 [10-point]), certain electronic media political advertisements (Gov. Code, § 84504.3 [8-point]), safety labels on portable gasoline containers (Health & Saf. Code, § 13139 [8-point or 12-point, depending on size of container]), and information cards for sexual assault victims (Pen. Code, § 680.2 [12-point)]). MoneyGram criticizes Judge Smith’s list because none of the statutes she cited dealt with arbitration agreements. We therefore add to her list Business and Professions Code section 7191, which specifies minimum point sizes required for arbitration agreements included in residential renovation contracts.* In that context, “[i]f a [prescribed] provision for arbitration is included in a printed contract, it shall be set out in at least 10-point roman boldface type or in contrasting red print in at least 8-point roman boldface type, and if the provision is included in a typed contract, it shall be set out in

capital letters.” (Bus. & Prof. Code, § 7191, subd. (a).)

“MoneyGram claims if a California statute were to require an arbitration agreement to be in a specific size font, it would be “flatly preempted” by the FAA. Because the issue is not before us for decision, we need not comment on the merits of that argument or the fate of the California statutes we have identified as specifying a minimum point size. (Compare Doctor’s Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 684, 687-688 [holding state statute requiring arbitration clause to be in underlined capital letters on the first page of contract is preempted] with AT&T Mobility LLC v. Concepcion, supra, 563 U.S. at p. 347, fn. 6 [“States remain free to take steps addressing the concerns that attend contracts of adhesion—for example, requiring class-action-waiver provisions in adhesive [arbitration] agreements to be highlighted.”]; see Sanchez, supra, 61 Cal.4th at pp. 914-915; Hedges v. Carrigan (2004) 117 Cal. App.4th 578, 584-585.)

17 In addition, as part of any contract for medical services that contains an arbitration agreement, not only is specified language defining the arbitration provision required by statute, but also the following: “Immediately before the signature line provided for the individual contracting for the medical services must appear the following in at least 10-point bold red type:

‘NOTICE: BY SIGNING THIS CONTRACT YOU ARE

AGREEING TO HAVE ANY ISSUE OF MEDICAL

MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND

YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT

TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.” (Code Civ.

Proc., § 1295, subd. (b).)

And finally, Code of Civil Procedure section 1298 prescribes certain requirements for real estate sales contracts, including that any arbitration provision in a printed contract appear in “at least 8-point bold type or in contrasting red in at least 8-point type, and if the provision is included ina typed contract, it shall be set out in capital letters.” (Code Civ. Proc., § 1298, subd. (b).) Even if violation of the typeface requirements does not invalidate the arbitration agreement (see Hedges v. Carrigan, supra, 117 Cal.App.4th at pp. 584-585), we nevertheless may use such legislative determinations as a reference point for the legibility of the Arbitration Provision under review and our assessment of the surprise element of unconscionability.

The foregoing statutes suggest not only that 6-point type is too small for most people to notice or read, but that the inclusion of an arbitration agreement in a noncommercial contract of adhesion is something that ought to be highlighted in readable print, bold font, and even red color if necessary

to make it visible. Whether or not such minimum requirements are

18 enforceable (see fn. 4, ante), they establish certain legibility norms that MoneyGram ignored.

d. Illegible typeface point size: the case law Conservatorship of Link (1984) 158 Cal.App.3d 138, 141-143,

established a rule-of-thumb for release of liability clauses in contracts: it found a release in 5.5-point type was unenforceable, in part because “[t]ypeface smaller than eight-point is an unsatisfactory reading medium.” (Ud. at p. 141.) Other authorities agree. “Type of 6-point or less is illegible, from the standpoint of ordinary ease of reading.” (Mellinkoff, How to Make Contracts Illegible (1953) 5 Stan. L.Rev. 418, 419.) Indeed, Link observed that the print was “so small that one would conclude defendants never intended it to be read.” (Link, at p. 141.)

MoneyGram cites only two cases involving agreements with print size as small as its own that have been upheld as valid, both involving the United States Cycling Federation and a release of liability contained in its contracts with amateur bicycle racers in the 1980's. Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485 held print size of 5.5 points in a liability release was sufficiently “conspicuous and legible” to constitute a valid release, “[s]ince the release language is practically the only language on the document.” (d. at pp. 1489-1490.) Significantly, the release language was “ ‘not buried in a lengthy document or hidden among other verbiage. The type is clear and legible and in light of the fact it has no other language to compete with, its size is appropriate.” (Ubid., quoting Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1468-1469.) Moreover, there was a dispute between the parties in Bennett whether the print size was 5.5 points or 7 points; the court assumed it was the smaller size based on the

procedural posture of the case. (Bennett, at p. 1487, fn. 2.)

19 Bennett and Okura carry no persuasive value here for several reasons. First, as Phinney confirmed, the nominal point size does not translate perfectly from one typeface to another, so knowing only the point size does not tell us if the bicyclists’ contracts were printed in a smaller physical typeface than MoneyGram’s or vice versa. Second, the release language in Bennett and Okura stood out because it was alone on the page, whereas here the Arbitration Provision appears on the back of the Send Form in the midst of a block of densely compacted print. Third, if we must reach back to tiny- print contracts dating from the 1980's to find one comparable to MoneyGram’s, we might conclude we are reaching (or MoneyGram is reaching) too far. Even without an expert’s opinion we can say the Arbitration Provision’s practically unreadable small typeface, faint contrast, thin characters, and cramped spacing reproduced on page 3, ante, and in appendix A are strong indicators of surprise and therefore of procedural unconscionability.

Less than two weeks after Judge Smith filed her order denying MoneyGram’s petition to compel arbitration, the Supreme Court issued OTO, supra, 8 Cal.5th 111, its most recent pronouncement on adhesion contracts and unconscionability doctrine. In OTO, the court reviewed a car dealership’s arbitration agreement contained in its employment contract, characterizing it as a “paragon of prolixity, only slightly more than a page long but written in an extremely small font.” (Ud. at p. 128.) The single

opaque paragraph covering arbitration was “ ‘visually impenetrable’ ” and

““challenge[d] the limits of legibility.” (obid.) The language of the MoneyGram Arbitration Provision is not prolix,

and the Arbitration Provision is not as lengthy as the one in OTO, but the

ce 299

Terms and Conditions could rightly be called “ ‘visually impenetrable’ ” and

20 ““challeng[ing] the limits of legibility.’” (OTO, supra, 8 Cal.5th at p. 128.) (See appen. A.) The parties in OTO argued about whether the font size was

7 points or 8.5 points. (Ud. at p. 119, fn. 4.) In either case, the typeface was likely physically larger than the 6-point font of MoneyGram’s Arbitration Provision. OTO concluded, “[b]y any measure, the type is quite small” (zbid.), and a “layperson trying to navigate this block text, printed in tiny font, would not have an easy journey” (id. at p. 128). The same is true here.

Last December, Division Two of this district in Ali v. Daylight Transport, LLC (2020) 59 Cal.App.5th 462, 474 (Alt) held an arbitration agreement's “small font” played a role in its being declared procedurally unconscionable. And the fact that an arbitration agreement was contained in a contract “filled from top to bottom with closely spaced lines of small type,” making it “as inconspicuous as a frog in a thicket of water lilies,” led the Second District, Division Six to conclude that no valid contract had been formed at all. (Domestic Linen Supply Co., Inc. v. L J T Flowers, Inc., supra, 58 Cal.App.5th at pp. 182, 185.) The font size in Domestic Linen was 8 points. Ud. at p. 183.) Tiny font size alone weighs heavily in making MoneyGram’s Arbitration Provision procedurally unconscionable.

e. Placement

Judge Smith also found the placement of the Arbitration Provision on the back side of the Send Form made it less conspicuous and contributed to its procedural unconscionability. In Gutierrez, supra, 114 Cal.App.4th 77, an arbitration clause was held unconscionable in part because it was “particularly inconspicuous, printed in eight-point typeface on the opposite side of the signature page of the lease.” (d. at p. 89.) Here, too, the words were printed on the opposite side of the signature page and in even smaller

point size than that involved in Gutierrez.

21 MoneyGram points to the fact that there were references on the front of the Send Form to “attached terms and conditions,” which should have alerted Fisher to the Arbitration Provision on the back side of the form. But even if Fisher had looked on the back side, there was little about the Arbitration Provision to make it stand out from the rest of the densely packed text of the Terms and Conditions. (See appen. A.) The word “Arbitration” is printed in bold type, but the rest of the Arbitration Provision is not. The entire Arbitration Provision is printed in all capital letters, but due to the small font, narrow characters, and faint typeface, it does not stand out distinctively from the surrounding text. The court’s findings that the print size was 6 points and that it was inconspicuous were factual, supported by substantial evidence. We agree with its legal conclusion that the Arbitration Provision is procedurally unconscionable as a result.

D. Substantive Unconscionability

Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether they create overly harsh or one-sided results. (Carlson, supra, 239 Cal.App.4th at p. 634.) Several different phrases have been adopted by the courts to describe the level of imbalance in

the terms required to render a contract unconscionable, but they all mean the

coe 6 999 99

same thing: something more than “‘ “a simple old-fashioned bad bargain, involving terms that are unreasonably favorable to the more powerful party. (Sanchez, supra, 61 Cal.4th at p. 911; Carlson, supra, 239 Cal.App.4th at p. 637, fn. 6.)

Judge Smith found MoneyGram’s Arbitration Provision substantively unconscionable based on three factors viewed in the aggregate. First, a shortened period of limitations, reduced from four years to one year; second,

the provision that arbitration would be governed by the AAA’s Commercial

Rules, which would make the process more expensive for consumers than the

22 otherwise applicable AAA Consumer Rules; and finally, the provision requiring each party to “bear its own costs and fees for experts and attorneys” effectively prevented Fisher’s potential recovery of attorney fees under Code of Civil Procedure section 1021.5 (Section 1021.5) in the context of Fisher’s UCL claim.®

We agree with Judge Smith’s assessment. Suffice it to say we think there is enough substantive unconscionability in each of these three clauses for them to weigh significantly in the balance against enforceability. First, the one-year statute of limitation is considerably shorter than the otherwise applicable four-year limitations period and is inherently one-sided against complaining consumers. (See Dennison v. Rosland Capital LLC (2020) 47 Cal.App.5th 204, 212 [one-year arbitral limitations period, compared with four years under the applicable statute of limitations, “severely shorten[ed]” the time for plaintiff to bring his claims and, together with one-sidedness of contract, supported a finding of substantive unconscionability].) Second, the hefty filing fee of $925 required by the AAA Commercial Rules—substantially more if the $800 “final fee” due in advance when the first hearing is scheduled and the fee schedule for nonmonetary claims is taken into account—serves as a deterrent to the bringing of consumer claims. (Sanchez,

supra, 61 Cal.4th at pp. 920-921; Gutierrez, supra, 114 Cal.App.4th at

5 Section 1021.5 reads in pertinent part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”

23 p. 99.)® That is so even if, as MoneyGram claims, Fisher may have qualified for a filing fee waiver or an AAA arbitrator would likely have applied the AAA Consumer Rules, which cap the filing fee for claims at $200. When he accepted the Arbitration Provision, Fisher was not in a position to know he might qualify for treatment under the AAA Consumer Rules or that there might be some possibility of a waiver. Fisher filed a declaration in superior court that his entire income consisted of veterans’ and Social Security benefits amounting to $43,034 annually, or approximately 345 percent of the federal poverty guideline for one person for 2019, when his declaration was signed.’ Fisher’s declaration does not indicate the size of his household, but he does declare that most of his income is spent on life’s necessities, such as rent and food. Fisher further alleges in his declaration that it would be a hardship on him to pay the cost of an arbitration under the AAA Commercial Rules, which his attorney estimates at $14,000 to $16,000 for the arbitrator’s compensation, not including attorney fees or other costs.

Even discounting his attorney’s estimate of arbitrator fees, there is substantial evidence in the record that Fisher would have had trouble paying $1,725 (more than two weeks’ income) to get to a hearing in arbitration on his individual restitution claim, and would have been unable to pay the $6,250 required to initiate arbitration of his nonmonetary and unwaivable claim for a public injunction (see McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 962

[right to seek public injunction under UCL is unwaivable]), and that figure

® According to our reading of the AAA Commercial Rules, the initial filing fee for a commercial claim for less than $75,000 is $925, with another $800 “final fee” due in advance when the first hearing is scheduled. Fora nonmonetary claim, such as the injunctive and declaratory relief requested in this case, the initial filing fee is $3,500, with a final fee, due at scheduling of the first hearing, of $2,750 (or a total of $6,250 just to secure a hearing).

7 The federal poverty guideline for one person in 2019 was $12,490.

24 does not include arbitrator compensation, expenses or attorney fees. His filing fee in court was $1,435. We conclude Fisher qualified under Gutierrez and Sanchez to assert a claim of unconscionability based on unaffordable AAA commercial fees in that he showed he could not pay the commercial fees or they had a “substantial deterrent effect” on filing his UCL claim in arbitration. (Sanchez, supra, 61 Cal.4th at p. 920.)

Third, we agree with Fisher that, on this record—which involves a UCL claim asserted on a class-wide basis on behalf of retail consumers exposed to fraud by a company that, so it is alleged, has failed to comply with an FTC injunction designed to protect against that very fraud—the provision requiring each party to “bear its own costs and fees for experts and attorneys” amounts to a waiver of Fisher’s potential right to an award of attorney fees under Section 1021.5 and therefore is another factor making the Arbitration Provision unduly harsh. In effect, the prospect that the kind of fee and cost award that might serve as a substantial incentive to the bringing of this kind of claim has either been eliminated or cast into doubt, thereby undermining the incentivizing effect Section 1021.5 is designed to have.

MoneyGram contends that the provision requiring each party to bear its own fees and costs is nothing more than a contractual codification of the American Rule governing attorney fee recovery (see Code Civ. Proc., § 1021) and that, in any event, the clause does not, in fact, prohibit Fisher from recovering attorney fees in arbitration. MoneyGram again turns to the AAA rules to rescue it from its own drafting, claiming that the fees provision, regardless of its express terms, would not be enforced by the AAA. The AAA rules, both commercial and consumer, authorize an arbitrator to award attorney fees to a party so entitled under the law. (AAA Commercial

Arbitration Rules, rule R-47(d)Gi); AAA Consumer Arbitration Rules, rule

25 R-44(a).) MoneyGram contends the AAA rules would supersede its own fees provision and would allow Fisher to recover private attorney general fees under Section 1021.5 in arbitration. Once again, we conclude MoneyGram cannot depend on the AAA’s more reasonable policies to eradicate the substantive unconscionability of the attorney fees provision. Perhaps in application this provision may be given the interpretation MoneyGram places upon it, but consumers have no way to know that up front and must simply take the risk the AAA rules would override MoneyGram’s fees provision as drafted. Thus, we still see a degree of substantive unconscionability from the standpoint of what a consumer signing the clause would be in a position to know at the moment of contracting. (Gutierrez, supra, 114 Cal.App.4th at

p. 91; Civ. Code, § 1670.5.) It is also notable that, so far as the record discloses, Fisher was not given a copy of the AAA Commercial Rules. (See Ali, supra, 59 Cal.App.5th at pp. 475-476.)

Standing alone, the degree of substantive unconscionability flowing from each of these three issues is modest. But collectively, their impact is substantial. Accordingly, we conclude that the AAA Commercial Rules provision in MoneyGram’s Arbitration Provision produces an unacceptable deterrent effect on the exercise of Fisher’s right to pursue a statutory remedy.

E. Using a Sliding Scale, the Entire Arbitration Provision Is Unconscionable as a Matter of Law

As noted above, unconscionability works on a sliding scale: the greater the procedural unconscionability, the less substantive unconscionability is required to make the contract unenforceable, and vice versa. (Armendariz, supra, 24 Cal.4th at p. 114; Carlson, supra, 239 Cal.App.4th at p. 630.) We conclude the procedural unconscionability was extremely high in this case

and the substantive provisions also contributed significantly to the

26 unconscionability, thereby making the entire Arbitration Provision unenforceable.

In OTO, supra, 8 Cal.5th 111, the Supreme Court held an arbitration agreement bore an “ ‘extraordinarily high’ ” degree of procedural unconscionability where its font size was either 7 points or 8.5 points. (/d. at pp. 119, fn. 4, 126.) Here, the font was 6 points, justifying an extreme assessment of procedural unconscionability. We see no reason why MoneyGram’s tiny-font Arbitration Provision should not be considered procedurally unconscionable as a matter of law, and to a high degree of unconscionability, based both on surprise and oppression. If a consumer cannot find or read an arbitration agreement, he or she may easily fall prey to greater substantive unfairness than would otherwise inhere even ina typical adhesion contract.

Because we consider the procedural unconscionability of MoneyGram’s Arbitration Provision to be extremely high, even a “relatively low” degree of substantive unconscionability is sufficient to render it unenforceable. (OTO, supra, 8 Cal.5th at p. 130.) The Arbitration Provision here, with its terms considered in the aggregate, easily crosses that threshold.

F. Refusal To Sever the Unconscionable Provisions Was Not an Abuse of Discretion

Finally, MoneyGram asks us to sever any unconscionable provisions of the Arbitration Provision but to enforce the balance. This form of remedy is expressly provided in Civil Code section 1670.5. On the issue of severance, we review the superior court’s decision only for abuse of discretion. (Armendariz, supra, 24 Cal.4th at pp. 122, 124; Baxter v. Genworth North America Corp. (2017) 16 Cal.App.5th 713, 722.)

Judge Smith explained her refusal to sever: “The court could not sever

these three provisions because to do so would make material changes in the

27 agreement as a whole.” It is generally considered grounds for denying severance if the Arbitration Provision is “ ‘permeated’ ” with unconscionability. (Armendariz, supra, 24 Cal.4th at pp. 124-125; Baxter v. Genworth North America Corp., supra, 16 Cal.App.5th at pp. 720, 737-738.) “Two reasons for severing or restricting [unconscionable] terms rather than voiding the entire contract appear implicit in case law. The first is to prevent parties from gaining undeserved benefit or suffering undeserved detriment as a result of voiding the entire agreement—particularly when there has been full or partial performance of the contract. [Citations.] Second, more generally, the doctrine of severance attempts to conserve a contractual relationship if to do so would not be condoning an illegal scheme.

€ 66

[Citations.] The overarching inquiry is whether ‘ “the interests of justice... would be furthered” ’ by severance.” (Armendariz, supra, 24 Cal.4th at

pp. 1238-124.) Correspondingly, the courts have identified three reasons for denying severance of unconscionable terms. “ ‘First, “[i]f the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced.” (Armendariz, supra, 24 Cal.4th at p. 124.) Second, the fact that an “arbitration agreement contains more than one unlawful provision” may “indicate a systematic effort to impose arbitration on [a consumer]... as an inferior forum that works to the [business’s] advantage” and may justify a conclusion “that the arbitration agreement is permeated by an unlawful purpose.” (/bid.) Third, if “there is no single provision a court can strike or restrict in order to remove the unconscionable taint from the agreement,” the court would have to “reform the contract, not through severance or restriction, but by augmenting it with additional terms,” which would exceed

its power to cure a contract’s illegality.” (Ali, supra, 59 Cal.App.5th at p. 481.)

28 The foregoing reasons do not call for severance in this case, as it would not serve the ends of justice. The Arbitration Provision contains three clauses contributing to its substantive unconscionability. There is no single provision we could strike to eliminate its unconscionable taint. To the extent MoneyGram suffers “detriment” by the remedy we provide Fisher, it is not “undeserved.” (See Armendariz, supra, 24 Cal.4th at p. 123.) MoneyGram’s Arbitration Provision shows every sign of having been designed to take unfair advantage of its customers. MoneyGram is now willing to have the Arbitration Provision enforced as significantly modified to avoid substantive unconscionability. We would not presume to impose such a thoroughly different bargain on the parties based on the fallacious notion that the superior court had abused its discretion or that refusing to enforce the Arbitration Provision would somehow be unfair to MoneyGram. (See Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 116-117; see

also Armendariz, supra, 24 Cal.4th at p. 125 [a party cannot “ ‘resuscitate a legally defective contract merely by offering to change it’ ”]; Carlson, supra, 239 Cal.App.4th at pp. 636-637; O’Hare v. Municipal Resource Consultants (2003) 107 Cal.App.4th 267, 280 [willingness to accept severance ““ “can be seen, at most, as an offer to modify the contract; an offer that was never accepted.” ’”].) We find no abuse of discretion in the superior court’s decision

to deny severance and to declare the entire Arbitration Provision

unenforceable.

29 III. DISPOSITION The superior court’s order of August 16, 2019, denying MoneyGram’s petition to compel arbitration is affirmed. Fisher’s request for judicial notice is granted as unopposed. Fisher’s motion for new evidence is denied. Fisher

is awarded costs on appeal.

STREETER, Acting P. J. WE CONCUR:

TUCHER, J. BROWN, J.

30 MONEYGRAM" TERMS AND CONDITIONS

MoneyGram” money transfer services ("Services") are provided by MoneyGram Payment ns, Inc. ("wey "us"or“Moneybramn’) e licensed mor its network ef agents, authorized delegates and other permitted entities (“Agents'| and are subject to these Terms and Conditions and applicatile law, Additional information regarding the Services may be available and obtained online at ww. moneygram.com or by asking an Agent. These Terms and Conditions, along with any forms, receipts, acknowiedaments, or other documentation completed or used in connection with your use of the Serv cluding any pre- -Iransaction or past-transaction disclosures, constitite the entine agreement (Agreement’) between you. the individual purchaser of the Services (" d MoneyGram, The Services, the underlyi Maney transfer ["Trensfer"} and certain aspects af the Se nd Transter (including, but nat limited to, Agent hours, Agent access, cur rencles held by an Agent, and the amount of a Transfer (“Transfer Armaunt"}), may, as applicable, be delayed, restricted, forfeited, ar ultimately unavailable due ti vs ang # regulaliors governing aur Services as well as cerlain circumstances and conditions associated with your use of the Services, We will report the Tran Amount, and other information relating to you and/or the use of the Services, to the appropriate fegal or regulatory authorities, governing bodies ar entities when necessary or appropriate pursuant to the laws and requlatinns governing our Services,

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p

vur [ransfer may be cancelled fara retunc of the Transfer Amoun' Quest and (ii) except as described below, the Transfer Fees a

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request a refund and cancellation of the Transfer either by visiting an Agent location ar contacting MoneyGram. All re fund Domestic Transfers will be subject 10 MoneyGram’s review and discretion and will normally be processed within thirty (30) days of receipt af valid writt ss 4 shorter period is required by law, Effective October 28, 2073 (i} International Iransiers may be cancelled fora full refund of the Transfer Amount arid all Tr axes paid byyou within

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thirty (30) minutes after you have made the payment for the Transfer, unless such International Transfer has already bee cancellation request and (ii) you may be entitled te @ full refund of the Transfer Amount and all Transfer Fees o forth above or as olherwise provided under applicable law. Your rights regarding the Transter are further explained un with such International Transfer,

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— Rate; tue rercy ivalbity In addition t applied, United States currency is converted to post-transaction disclosures provided by MoneyGram to you has been r: used by MoneyGram to canwert the currency into foreign currency may bi to you in writing and the exchange rate received by Mo foram will be national curency of the Expected Dest tinalio payout currency, whether are available in all Agent loc

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THE TRANSFER AMOUNT ¥ FOR INCIDENTAL, INBIRTCT, TS’ NEGLIGENCE, OTHER FAULT, WIDER OR THEIR DESIGMITS. E TRANSFER, THE AGREEMEN Ss THE AMERICAN ARBITRATION He ARBITRATION AWARD MAY BE ENTERED IH ANY COURT HAVING JURISDICTION THEREOR ANY SUCH ARBITRATION SHALL BE INITIATED AKD! HELD IN THE OF HE AAA CLOSEST 10 THE AGENT LOCATION WHERE YOU INITIATED THE TRANSFER, PACH PARTY SHALL BEAR ITS OWN COSTS AND FEES FOR EXPERTS AND ATTORNEYS, AND NO PARTY SHALL HAVE 4 BIGHT TO PARTICIPATE AS & MEMIBFR OF ANY CLASS OF CLAIMANTS, THIS EXCLUSIVE ARBITRATION REMEDY SHALL NO) BE AVAILABLE UNLESS INITISTED WITHIN ONE YEAR AFTER THE CONTROWERSY OR CLAIM AROSE General. This Agreement is coverned by Minnesota law without regard a is conflicts of lav rules, supersedes all prior agreements or understandings between you and MoneyGram, and cannot be modified orally. In the event of any conflict belween the English version of our Agreement with you and any non-English version, the English version shall cantral and govern. Services are directed ta persons 18 years and over, may nol be used for escrow purposes or gambling, and ray only be used fara lawful purpose. You represent, warrant and acknowledge ta MoneyGrarn thal (i) all infarmation you supply to us as part of erent (s truthtul, accurate and complete, iii) you have received and reviewed a pre-transaction disclosure andor receipt in connectian with your purchase af Services and that the information contained on such docurnentation is complete and accurate and (ii) your use of the Services does ni late any law, including withoul limitation, laws relating to money iaundering, illegal gambling activities, support for terrorist activities or fraud, You shall indemnify MoneyGram and its Agents far all losses af any kind (including attorneys fees} arising out of any breach of the Agreement by you ar by the Receiver. VieneyGram may refuse Io provide Services to ary person, Privacy Notice. MoneyGram may disclase your personal infarmatian ta third parties as autlined in the MoneyGram Privacy Slatemenl, which is available on our website at www. maneygram.cam ar by calling 1-800-926-9400, Disclosed information may include, but is not limited te, your contact information, your identification, information aboul the Transfer or your use of the Services, or other infarmatian relating ta financial matters. Ihe information may be disclosed to financial institutions, aur Agents, our service providers, or qaveramental o° other requlatory agencies {including law enfarcement officials within ar outside of the United States}, and direct marketers. Io opt out of receiving infarmation about our products and services, email markelingpreferences@mioneygraml.com or cg! 1-800-926-9400, lo helo protect your oersonal information, we endeavar ta.use reasonable security measures. MONEYGRAM? TPRMINGS ¥ CONDICIONES,

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PSY OR CLAIM ARISING QUT OF 0 BE SETTLED BY ARBITRATION &

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Servicios, puede visilar el sitio web en worw.trloneygram.com 9 consultar 2 un Agente. Estos Términas y condiciones, junto can cualesquiera formularias, recibos, acuses de recibo u otra decumentacidn comoletada o utilizada en relacidn con el usc que uster! haga de los Servicios, lo que incluye cualquier dacumentacian prev tel acuerdo completo (Acuerdo"} entre usted, el camprador parlicular de los Servicit ed” o"Remitente’) y MoneyGram. s pasiole que los Servicios, la transferencia de dinero subyacente (*Iransferencia’} y ciertas aspectos de ins Servicios ¥ la Translerencia (lo que incluye, enlie otros, ef horerio del Agente, #! acceso al Agente, las monedas con que opera el Agente y el Moato de trensferencia ["Manta de

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8.5”

translerencia’]}, sultan demoras o restriccianes, se pierdan o en tltima in sen disponidles, sequin corespanda, debido a ciertas leyes y reglamentaciones que rigen auestras Servicios, y a deterninadas circunstancias ¥ condiciones relacionadas can el uso que usted haya de dictios Servicios. Cuando sea necesaria a cuande comesponda en virtud de las leyes y reglarmentaciones que rigen nuestros Serv cigs, intormaremas /a Transferencia y el Monte de transferencia, ademas de olva informacion relacionada can usted ya con el usa de los Servicios, 4 las autoridades leqales o reguladoras, 0 a las entidades v organismas rectores correspondientes.

Informackin de recepciin, La persona q d designe para recibir la Transferencia ("Destinatario bir Ins fandes que erie a través de nuestros /Agentes en los Destings esperados. Tal coma se utiliza en el oresente, un “Destino esperado” generalmente significa, para ransacciones de transferencias de dinero gue se originan yreciben dentro de los Estados Unidos ("Transteteacias naclonales"}, el Tstada desiqnade gor usted para que el Bestinatario recibe la lransfetencia dentro de fos Estades Unidos 9 un Estade contique al Esta ones de transferencias de dinero que se oviginan en los Estados Uridos neta que se reciben fuera de dicho pais. {"Transferencias internacionales"), el pais o territario, sequin cores, d pera que el Destinatario recita la Iransterenc! une! tipo de ferencia, por la general, se realizard mediante cinero en efective. giro, cheque, depasito en cu una combinackin 0 ciertas circunstancias, el Destinatario podra solicitar un Método de paga diferente al que usted haya seleccionado, y usted aatorza 3 or eyGram 4 aceptar la eleccion de! Destinatario. Se considera que una Transferencia es desernbolsada y eniregada por Hosettos ¥ que fo tenemos mas obligaciones para con usted, a excepcion de lo establecida mas abajo, cuando nuestro Agente realiza el desernbolso al Destinatar ion del desembolsa oe (2 Transferencia a raves de! barico @ proveedor que mantiene a cuenta, o de la persana que estos desic 1a las disposiciones sobre identificacién del Destinatario ue se incluyen en el spasible que ry le brindemos el servicio de sequimiento a clad Wild cuenta, Cierlas Destinas esperados pueden gravar con Imriouestas, tasas 0 aranceles el vecibo de la Transferencia o el acceso a esta par ‘adas las tarifas cobradas por noselras come parte de la Transferencia (“larifas de la Transterercia”o “Tarifas para el consur pos los impues brados a usted come parte de la Transferencia (“linpuestes por Transferencia’? y todas las demas tarifas aplicebles de less qe dea sr formats usted ("Unras Stas svn identincadas indivi cualmenke

‘05 documentos correspandicntes artes y despuds de la transac dirigidas a ciertns Destinos esperadas; (77) immoliquen cuestio demorada pueden tomar més tiempo que el previste para la ent Lar ar suet lransferencia sea desembolsada. Ni usted ni el Destinetario tendran un depose neyGram en Transferencias Vencidas La disposicién siguiente se aplica iinicamente a las rarisferenties en los EE. UU. y el Estado Libre Asociado de Puerta fico: Si nos solicita que 2 fe yel monta de la tra i y

despucs de ese pl g und Transferencia vencida. $i) ocurre una [ransferencia vencida, e oun reembalsy de! monte de la fransterencia vencida. Si obtiene conocimiento de que un monia transferide no se cobrd, comuniquese con nosotras para solicitar su reembalso,

Informacion de ree cesembolsada o depositade dicha Transferencia al moments en que cuestin, par lo general. reembulsables junicarse con MoneyGram. Todas las solicitudes de reembalso para llaqsterencias nacionale 5 se proces dh den ° de los 30 dias de recibir una solicitud valida par escrito, a no ser que por ‘ey se ( f ) las ranstereacias internacionales se podién cancelar pata oljtener el reer nbs total de! Manto de transferencia y se le dewo todas asl del Ir ansfete nia olmpuests pr Translerencig paqadis por usted, dentro de los treinta (30) minutos luege de haber efectuado el paga de la Transterencia, a Menos que dicha Transferencia internacional ya hays sido desembolsada al momento en que se solicita la cancelacin de forma oral o escrila: y (ii) usted padrd tener derecho al reembolso total del Monto det cia ya todas las Tarifas de la Transferencia o |mput nsferencia pagados por usted se si ha producido un error sequin se establece anterlormente o en virtud de In estigulado por la ley plicable. Sus derechos en tornaa/a Transferencia se explican con mas detalle en la dacumentacian conespondieate generada en relacion con la Transferencia internacional,

Identificacian, prequntas de prueba y numeros de reverencia. Nosotros nos reservamas el derecho que lo identifique ¢ usted 4/0 al Destinataria en relacién con cualquier compra y/o use de nuestra ). Er algunas localidades de Agente, tambien se podid exigir al Destinalaria que responda a und pregunta de prueba, en lugar de suministrer su identi “para vet laa isferericia, Fs pasible que las preguntas fe prueba no estén disp en tier tas localidades de Agente o Destinos esperadas. Si bien usted recibicd un ntimeno de referencia correspondiente @ su Transferencia

sesiqnado: y para tran

restricciones adicionales, ¥ afectar la capacidad para que la CUR memento.

nto de transterencia, a menos que hayainos 2 descrite: mds abajo, las Tarifas de la

arobligados legalmente a salicitar, dacumentacién

{Numero de retereacia”), dicl je para recibir una Transferencia cuande se utilice medios de identificacién (tales como tecibo de Identificacian guna responsabilidad en el caso de que la Transterencia sea desembolsada, cuando comesponda, a una persona que resp pend caret i enula ede prueba, suministre una

Identificaciin a Destinataria (au ungue dh identificacion sea false o falsitcada) o suministre e| Numero de referencia

Transferencia aplicables a su aperacian, si la Iransferencia es una lransferencia internacional, podra ierle a monedas extraneras, utilizando un ie de cambio establecida por nasatras ("Tipo cin suministrada por MoneyGram se he redondeed a la cantidad de aM para conwertir la moneda a moneda extranjera puede ser mayor que

Tipo de cambio; disoay aplicarse un tipo

sbi Mon eda val la maneda ia de page, expt ves en Moneda ocal om ‘otra § las localidades de Agente tienen disponibilidad de todas las ranadas, cc : 0, para obtener infarmacién sobre el Tipa de cambio de la monede o

Agente o camuniquese ci monedas dispanioles en e RESPONSA BILIDAD av iQ NTO

WA ERROR, OMISIONGINCUIMPUMINI ORL ESTAR OM PRWTTOORDC TSO

SURI DEBICO ai GENCIA, 0) POR LOS ACTOS U OMISIONES DEL BANC

O QUE SURIA GE LA TRANSFERENCIA 0 EN RELACION CON MIBOR, SERAN RESUELIOS MEDIAN TE ARBII RAE CONDUCIDU POR

4 EN LA OFICINA DE LA AAA ROS POR LA CONTRATACION ast A CONTROVERSIA.G EL RECLAM 10S de la legisla , Za todos an configs ent la versi@nen inglés de nuestra estin dirigidos a personas que tienen 18 afies de edad en arelante, es, Usted declara, garatilize y recanuce arile MoneyGram ecibido y revisade la dacumentacidn previa a la transaccidn y/o un recibo en relaci es. completa y exacta, y (iii) el uso que usted ha fos Servicios rio. infinge legislacidn alqurna, incluidas entre otras, las ley s telecon: ada alavado de tints as acetadecde aquest ales, la financiacin de actividades ternoristas, acl fraude. Usted debera indemnizat a ManeyGram y asus Agentes porludas las pésdidas de cualquier tipo (incluidos los honrarios de abogados} que surjan por cualauier incumplimienta del Acuerda por parte de usted o de 1 Destinataia MureyGram puede rehusarse a bnndar las Servicios a cualquier persona Nolificacitn dle Confidencialiddad, MoneyGram puede tevelar su informacion personal a terceras come estd indicade en la Declaracidn de Privacidad de ManeyGram, la cue esta disponible en muestrt sitio vwveb ent wnaw, moneygrani.com a llamande al 1-800-926-9400. Informacion divulgada puede incluir, pera nose limita a, su informacidn de contacto, su ide infor mau ion sab Plante enicid osu usd d2 las Servicios lier otra informaciGn relacionada con las cuestiones financleras. La informacian ares 8 oe servicios @ agencias requladoras qubernamentales o de 07 10 tipo (en particular lo uncionarias ES. direc los, Pan id dejar di PP bir informaciér SOD NUESioS prog se vicios, 300 926 S400), Para ayudar @ proteger su informacién personal, nos esforzames a utilizar

LOWER TRI HAL COMP: E

cf UATRANSFFRENCIA, Cr PARTES TTNDAS DERE CIO A I QUE SE INICIE GENTRO DEL iT la legislacion de Minrewsta inepelenterene de 1 puede modificarse oralmente, En el caso de que

MAS CERCA DE SPECIALIST SF ABE DE SREHRALE EXCLUSIVON

Cuerdas 0 ido no pueden util toda la informa

medias 2 Far WalmartéWalmart rlafinancial.com. Pare

los GHFR, VW?

ons, Lerms and couditi ble on your receipt. You can also refer to terms and « ns online at www. octuadas a través de Kila, Ins téminos y condicianes estén dispanioles en el recibo, También puede consultar D86 FY19 01 W2World Money Services Campaign | Transfer Form | ©2018 Walmart Apollo, LLC BESISE

».

APPENDIX A

ol 11”

Vv

we

MONEYGRAM TERMS AND CONDITIONS Walmart2Walmart Terms and Conditions are available on the receipt MGSOO1SUSOVN O114

* money transfer services ("Services") are provided by MoneyGram Payment Systems, Inc. ["we" “us” of “MoneyGram”) throwgtn its netwark af agents, authorized delegates and other permitted entities ("Agents") and are subject Lo these Terms and Conditions and applicable law. Addititeal information mqarding tiie Services may be avallable and obtained online at wwwemoneygram.com or by asking an Agent, These Terns and Conditions, along wilh any forms, receipts, acknowledgments, of other documentation completed or used in connection with your use of the Servires, including any pre-transactinn or past-transaction diiclasures, constitwte the entire agreement (“Agreement”) between you, the individual jurchaser of thie Services (yau" or "Sender”) and MoneyGram. The Services, the underlying money tranifer ("Transfer") and certain aspects of the Services and Fransfee (including, hut not lintited to, Agent tiours, Age excess. currencies held byan Agent and the.amaunt ofa Transfer (“Transfer Amount"), may, as applicable, be delayed, restricted, forfeited, or ultimately umavaitable due to-certain laws and regulations gavesning aur Services as-well ag certain ccurnptances and candilions assacated will-yout useofthe Services. We will mport the lransfer and Transfer Amount, 2nd other Information relating to you and/or the use of the Services, to the appropriate leqal or regutatery authorities, gowerning bodies ar entities when mecessary or appropiate pursuant te the laws and eequ lations qaverning our Services Receive Information. The individual detignated by you to receive the Transfer ("Receiver") may recone the funds sent by you-al ows Agents in Expected Destinatians. As used herein, an “Expecled Destinalion” generally means, for maney transfer transactions from the United Stetes that are to be received within the United States (*Damestic Transfers"), the State designated by you where the Receiver s to receive the Transfer within the United States ng a Stata contiquoces to such designated Stare; and for money transfer transactions sent from the United States that are to be reeled outside of the United States (international Transfers’), the country ar territory, as applicable, designated by you where the Recetver it to receive tht Transfer, Depending en the type of Service sclocled by you, the disbursement of the Fransfer will generally occur in the form of cash, money order, eck, atenint deposit; ora combination of these payout methods ("Payout Methods"), Under certain creummstances, the Receiver may mquest a Payoul Method thal differs fom the Papout Method you have selected and yau avthorite MoneyGram te honarthe Receivers election, Transfer is deemed disbursed by usand delivered, and we have ne further Eabllity To you, exept as sot forth below, when it & actually disbursed by our Agent (ar noticeo! the Transfer's disbursement is mate available 10 us by the bark oFaecdunt pravider holding the account ar thelr designee} to the Recetver aubject ta the Receiver Idenaifie2tion provisions herein, Status tracking of & Transfer to an account may not be available from wi, Certain Expected Destinations may impose tares, fers, ander tariffs upon the Receiver’ receipt ot ue arcess to, the Transfer, All fees changed by us.as partof the Transfer (Transfer Foes" of Consumer Fees"), all tau collected by us and changed to pou as part of the Transfer (“lransfer Taxes") and all opplicable thie party foes that are required to be disclosed to you ("Other Fees") shall each be as identified of the applicable pre-transaction and post-transaction dsclowures generated with your Transfer. Transactions which (]} exceed certain amaunts: (i) are Lo certain Expected Destinations; (ii) implicate any legal, compliance or other regulatory (ssares; oF (iv) are sent through delayed delivery antions may take tanger than artic pated for delivery, may be saibfoe! Lo dallas limits or may be subject to additional restrictions and may affect the ability for the Transfer to be disbursed, At no tire will ether you or the Recelver have 2 deposit with MoneyGram. Refund Information. Subjectto applicable law, (i) your Transfer may be cancelled fora refund af tse Transfer Amount, untess the Transfer has been disbursed or deposited by ws at the time we recelved your cancellation request and (E) extent as described below, the Transfer Foes assodated with youn Transfer are isvally notrefundable, You may request a refund and cancellation of the Transfer either hy visiting an Agent Incatien of contacting MoneyGram. All refund eequests foe Domestic Transfers will be subject to ManeyGramis review ane! discretion and will pormably be procested within, thirty (20) days of receipt af a valid vwrten request unless 2 sharter period is requlred by law. Effective Metober 28, 2073 ( Internationa Wransfers may be cancelied fora full refund of the Transfer Amount and all Transfer Fees or Transfer Taxes paid by you within thirty (30) minutes after you have mudiethe payment for tne Transfer, unfess such Interigtinnal Transfer has already been disbursed by us atthe tine of such oral ar written cancellation requestand (ihyow may be entitied to a full refund of the Transfer Amount anc all Transfer-Fees or Transfer Taes paid by you if aa error has accused as set forth above or as otherwise provided under applicable tw. Your rights regarding the Tranclet are further explained wader the applicable decosares generated in connection with such International Fransfer, Identification, Test Questions and Reference Numbers. We reserve the right to requir, and may be legally required iwobtain, documentation that vill kentily you andor any Receiver in connection with any purchase and/or use af cur Sendces ("10"). In some Agent locations, tho Receiver may also be required to provide a besl questing answer, instead of 60, to revolve the Transfer. fest questions may not be availabie in certain Agent lacathans or Cepected Destinations While you will rocoive a. reference number lsat eotresponds to-yeur Tranter ("Reference Number"). such Reference Number is rm always required to seceivea Transfer where other identification means fouch as 1D receipt or test questions) are utilized. MoneyGram shall not have any lability in the event that the Transfers fisbursed, when and as applicable, to an individual wha property enaerens@ Lest question, prmvides If)to the Agent describing such pevtonas the Receiver jeven if such ID-was fatse orforged), or provides the Reference Number. Exchange fate; Currency Availability. In acidition to the Transfer Fees applicable to your Transfer, if the Transfer is an Intemational Transfer, a currency exchange sate may be apalied. United States currency’ bs cormverted to 2 foreign currency at an exchange rate set by us ("Exchange Rate"). The Exchange Rate deserited on any pie-lraniaclion and post-transaction disclosures provided hy MoneyGram fa you has been munded to the number af éeciina} places identified cn such diclusures, The number of decimal places used by ManeyGrarn to cnmvert the currency ints foreign currency may be greater than that displayed on the disclawures. Any difference In the Exchange Rate divclosed to you in vwrlling and the exchange rate reccived by MoneyGrem will be kep! by MoneyGram fand/or its Agents in somecases), Payouts will generally be made in the national currency of the Expected Destination ("Local Curency"). Insome countries or teriitories you may designated payor currency other than the Local Currency. The payout currency, whether capressed in-tive Local Currency ov otherwise, shall be eeficcredin the pre-transaction and past-transaction disclowures, Because nat ail curmnces are available In all Agent locations, please ask an Agent or contac us by visiting werw.moneygram.com or calling 1-8D0- 26-9400 for information regarding, the currency Exchange Rate or the currencies available ia the Expected Destination. LIABILITY. LINLESS APPLICABLE Lave REQUIRES OTHERWISE, POUR EXCLUSIVE AND MAXIMUM REMEDY AGAINST MOMEVORAM IS REFLIME OF THE TRAMSEER AMOUNT PLUS ANY TRANSFER FEES CHARGED BY MONEYGRAM, MQ OTHER REMEDY 15 AVAILABLE TOYWOU, SHCLUQING, SUT MOT LIMITED TO AMY REMEDY FOR INCIDENTAL, NIRECT, SPECIAL OF CONSEQUENTIAL DYLMAGES. THESE LIMITATIONS APPLY WHETHER TOUR CLAIM ARISES DUE TO HOSEYGRAM OF ITS AGENTS NEGLIGEHICE, CTHER FAULT, ERIOR, CMISSIIN OR NON- PERFORMANCE. WE ACCEPT WO RESPONSIBILITY FOR FE ACT: GR OMISSIONS OF A RECEIVER'S BANE, SERWECE PROVIDER OR THEIR DEMGHEES, ARBITRATION, UNLESS OTHERWISE SPECIFIED BY APPLICABLE LAW, ANY CONTROVERSY GR CLAIR: ARISING OUT OF Of RELATING TO THE TRANSFER, THE AGREEMENT O8 BREACH OF THES AGREEMENT, IMCUUDING STATUTORY (GN SUMER CLAIMS, SHALL GE SETTLED BY ARBITRATION ADMINISTERED THE AMERICAN ARBITRATION ASSOCIATION (AMAT) UNDER [FS COMMERCIAL ARBITRATION RULES. JUDGMENT ON THE ARRITPATION AWARD MAY BE ENTERED it) ANY COURT HAVING JURISDICTION THEREOE AMY SUCH ARBITRATION SHALL EE RIT IATED AbD) HELD IN THE OFFICE OF THE ANA CLOSEST TO THE AGENT LOCATION WHERE TOW RATIATEO THE TRANSFER, EACH PARTY SHALL BEAR ITS OWN COSTS ANG FEES FOR BUPERTS AND ATTORNENS, AMD HOPARTY SHAEL (AVE ATHGHT 10 PARTICIPATE AS A MEMBER OF AN'ECL ASS DFC LARMANTS. THIS EECLUSIVE ARBITRATION REMEDY SHALL MOT AP AVAILABLE LILES SIMATIATED WITHIN ONE YEAR AFTER Tt COMTROVERSY Of CLAIM ARDSE. General, This Agreement isqowemed by Minnesatalaw without regard taltsconflicts of law nutes, supersedes all priaragecements or understandings between you and MoneyGram, and cannot liemodified orally. in themrent of any maflicthetsern the English version of our Agreement with you anit any non-Enqgieh version, the English version shall control and govern, Services are directed to persatts 18 yours and over, may not be used for extra pepases or gumialing, anicl may only be sed for a jovelul purpme. You mpresenl, warrant and acknowledge to MoneyGram thal {i} all information ‘you supply Lows ay part of this Agreement irutitel, accurate and complete, (ii) you have recetved and reviewed a pre-traniaction Gisciosure and? or feceapl in connection with your purthade of Services and that the infanmiating tentained on wth danmmentation is complete and accurate and (Ti) your use of fie Services doesnot vintae any law, inchudirig without Henitetion, faves relating to money laundering, Bega! gambling activities, support fine teteeeist arlivitios ar fraud, You shall indomaily Maoneypliram and! iis Agents for all lasses of any kind finchuding attorneys fees) arising out of amy rtveh of the Agraement lay you arhy tlie Receiver, MoneyGram may ecluse ty provide Services to any person, Privacy Notice; Sharing of Infermation. MoneyGram may viscose your personal information to third patties as eutiined in the MoneyGram Privacy Statement, sich is avallahle mn owt website al wravemnaeygram.com or by calling 1-800-926-9400. Dischnsed lafonmation may mclude, laut Fs nat limited te, yur contact information, your identification, information about the Transfer or your use of the Seriices, or other information relalmg ta financial walters. The information meiy be decloed to financial institutions, our Agents, aur servieo provider, of governmental oF other teralatory agencies (including la enforcement officials within or outside of the United States), and direct marketers. To opt out of receiving information about our products and sevice, ema! marketingpediere neeserm ancy gram com or call 1-600-920-9400, To help protect your peroneal iformation, weendcakor to use reavonable security meaiures,

an

©2015 War Mart Stores, Inc, |553661027 EEE}

APPENDIX B

(English version only, 2016 Terms and Conditions)

32 Filed 7/27/21 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

DIVISION FOUR JONATHAN FISHER, Plaintiff and Respondent, A158168 V. (Alameda County Super. Ct.

No. RG19009280) MONEYGRAM INTERNATIONAL,

INC., ORDER GRANTING REQUEST TO CERTIFY OPINION FOR

A llant. Defendant and Appellant PUBLICATION

THE COURT:

The opinion in the above-entitled matter filed on June 29, 2021, was not certified for publication in the Official Reports. Julian Hammond of HammondLaw, P.C., counsel for respondent, filed a request that the opinion be published. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.

Dated: July 27, 2021 STREETER, Acting P. J. Trial Court: Alameda County Superior Court Trial Judge: Hon. Winifred Y. Smith

Counsel: Norton Rose Fulbright US, Eric A. Herzog, Michelle L. Carter; Wolfe & Wyman, Brian H. Gunn, for Defendant and Appellant.

HammondLaw, Julian A. Hammond, Polina Brandler; Goldstein, Borgen, Dardarian & Ho, Laura L. Ho, Anne P. Bellows; Katz, Marshall & Banks,

Daniel B. Edelman, pro hac vice, for Plaintiff and Respondent.

Fisher v. MoneyGram / A158168