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Badie v. Bank Of America11/3/1998
CERTIFIED FOR PUBLICATION
Super. Ct. of the City and County of San Francisco, No. 944916
Plaintiffs, four individuals and two consumer-oriented organizations, Consumer Action and California Trial Lawyers Association, challenge the validity of an alternative dispute resolution (ADR) clause which Bank of America (the Bank) sought to add to existing account agreements between itself and its deposit account and credit card account customers by sending those customers an insert with their monthly account statements (hereafter, "bill stuffer"), notifying them of the new term. None of the individual plaintiffs had a deposit account with the Bank, but all had the Bank's credit cards.
Plaintiffs filed their complaint shortly after the Bank began sending the "bill stuffers" to its customers. All six plaintiffs, acting as private attorneys general, sought to enjoin implementation of the ADR provision on the ground that its addition to the account agreements violated the Unfair Competition Act, Business and Professions Code section 17200 et seq. The four individual plaintiffs alleged two additional causes of action on their own behalf. In one, they sought to enjoin implementation of the ADR provision on the ground that its addition to the account agreements violated the Consumer Legal Remedies Act, Civil Code section 1750 et seq., and in particular section 1770, subdivisions (n) and (s). In the other, they sought a declaration as to the validity and enforceability of the ADR clause.
After a 17-day non-jury trial, the trial court entered judgment in favor of the Bank, ruling that the change of terms provision in the original account agreements permitted the addition of the ADR clause, and that the new provision was enforceable because it was not unfair or unconscionable and was consistent with the covenant of good faith and fair dealing. The trial court also ruled that plaintiffs had failed to prove their Consumer Legal Remedies Act claim.
Plaintiffs timely appealed. While they make numerous arguments referring to the alleged unfairness, unlawfulness, deceptiveness and unconscionability of the ADR clause and the Bank's method of adding it to the account agreements, nowhere in either their opening brief or their reply brief do they directly address the statutory causes of action they brought under Business and Professions Code section 17200 et seq. or Civil Code section 1770, subdivisions (a)(14) and (a)(19). Indeed, the briefs do not even so much as cite to the Unfair Competition Act or the Consumer Legal Remedies Act, much less discuss their provisions or their application to the evidence presented at trial and to the causes of action framed under them. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Muega v. Menocal (1996) 50 Cal.App.4th 868, 877; San Mateo County Coastal Landowners' Assn. v. County of San Mateo (1995) 38 Cal.App.4th 523, 559; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) We therefore limit our review to the trial court's Disposition of the third cause of action for declaratory relief as to the validity and enforceability of the ADR clause brought by the individual plaintiffs.
Background
Starting in June 1992 and for a period of several months thereafter, the Bank mailed half-page "bill stuffers" to its personal credit card and deposit account customers, informing them that, from that time forward, any dispute between a customer and the Bank regarding custom
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