Filed 11/8/11

CERTIFIED FOR PUBLICATIONCOURT OF APPEAL, FOURTH APPELLATE DISTRICTDIVISION ONESTATE OF CALIFORNIAYAUBE ROBERTS,Plaintiff and Respondent,v.EL CAJON MOTORS, INC.,Defendant and Appellant.D057737(Super. Ct. No. 37-2009-00092495-CU-CO-CTL)APPEAL from an order of the Superior Court of San Diego County, Ronald S.Prager, Judge. Affirmed.Tharpe & Howell, Christopher S. Maile and Soojin Kang for Defendant andAppellant.Rosner, Barry & Babbitt, Hallen D. Rosner, Christopher P. Barry and Angela J.Smith for Plaintiff and Respondent.El Cajon Motors, Inc., dba El Cajon Ford (El Cajon) appeals from an orderdenying its petition to compel arbitration of an action brought by Yaube Roberts

2individually and on behalf of others similarly situated for violation of,

inter alia

, theAutomobile Sales Finance Act (Civ. Code, § 2981 et seq. (ASFA)), the Consumers LegalRemedies Act (

id.

§ 1750 et seq.) and the Unfair Competition Law (Bus. & Prof. Code,§ 17200 et seq. (UCL)). Because we conclude substantial evidence in the record supportsthe finding of the trial court that El Cajon forfeited arbitration, we affirm the trial court'sorder.FACTUAL AND PROCEDURAL BACKGROUNDIn late June 2009, Roberts sued El Cajon and Crescent Bank & Trust (Crescent).Roberts's first and second causes of action against El Cajon are based on violations of theASFA and the UCL, respectively, and are brought on her own behalf and on behalf of classes of similarly situated persons.1 Roberts alleges she was one of many customers who, during the four years prior tothe date she filed the complaint, purchased a vehicle from El Cajon using a retailinstallment sale contract (RISC). According to Roberts, she entered into more than oneRISC for the same vehicle and the final RISC she signed was backdated by El Cajon tothe date of the first RISC she executed. As a result of this alleged unlawful practice,Roberts contends El Cajon "failed to properly disclose the Annual Percentage Rate('APR') and finance charges on the RISCs" and El Cajon charged consumers illegal1Roberts's third, fourth and fifth causes of action for violation of the ASFA, theUCL and for declaratory relief, respectively, were brought by her individually againstCrescent. Roberts dismissed Crescent without prejudice from the lawsuit in late October2009. Crescent therefore is not a party to this appeal.

3interest "from the date of the initial RISC, rather than [from] the final RISC, resulting inundisclosed finance charges."A.

Class Action Allegations

Roberts's complaint includes the following two proposed classes of plaintiffs inconnection with her first and second causes of action against El Cajon:" 'Class 1': All persons who, in the four years prior to the filing this complaint, (1)purchased a vehicle from [El Cajon] for personal use, (2) on a later date rescinded theiroriginal [RISC], and (3) signed a subsequent or second RISC for the purchase of the samevehicle, which RISC was dated the date of the original RISC and [which] involvedfinancing at an [APR] greater than 0.00%." 'Class 2': All persons who, in the four years prior to the filing of this complaint,(1) purchased a vehicle from [El Cajon] for personal use pursuant to a[n] RISC, (2)agreed to pay some or all of the down payment at a date after execution of the contract,and (3) whose RISC does not disclose that some portion of the down payment would bedeferred until not later than the due date of the second regularly scheduled installmentunder the RISC and that was not subject to a finance charge."B.

El Cajon Answers the Complaint and Discovery Commences

El Cajon answered the complaint in mid-August 2009. In addition to its generaldenial of all allegations pursuant to Code of Civil Procedure section 431.30, El Cajonasserted 24 affirmative defenses. None of its affirmative defenses, however, alleged theexistence of an arbitration provision that is the subject of this appeal.