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Badie v. Bank Of America11/3/1998
supra, 56 Cal.App.4th at p. 1451). However, the Bank's interpretation of the change of terms provision would dispense with the requirement for a clear and unmistakable indication that the customer intended to waive the right to a jury trial. Because we find no unambiguous and unequivocal waiver of that right here, and because the right to select a judicial forum, whether a bench trial or a jury trial, as distinguished from arbitration or some other method of dispute resolution, is a substantial right not lightly to be deemed waived (Arista Films, Inc. v. Gilford Securities, Inc., supra, 43 Cal.App.4th at p. 502; Chan v. Drexel Burnham Lambert, Inc., supra, 178 Cal.App.3d at p. 643), the Bank's interpretation of the change of terms provision must be rejected.
Disposition
The judgment entered in favor of the Bank on the plaintiffs' third cause of action with respect to the validity and enforceability of the ADR clause is reversed. That clause is not a part of the Bank's contract with the four individual plaintiffs here and may not be enforced against them. The judgment is affirmed in all other respects. Costs are awarded to the individual appellants.
We concur:
Corrigan, J.
Walker, J.
Trial court: Superior Court of the City and
County of San Francisco
Trial Judge: Hon. Thomas Mellon, Jr.
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