I’m suing my bank, a national bank. The dispute resolution section of the deposit agreement allows small claims, individual arbitration, and trial by judge without a jury except in California where only judicial reference (a judicial referee) is allowed. Is there any case law I can use to challenge the preclusion of trial by judge? In addition, if I can challenge that, is there any case law I can use to challenge the preclusion of a trial by jury?
Lawsuit / Dispute Attorney
The starting point for your research should be Tarrant Bell Property v. Superior Court (2011) 51 Cal.4th 538. Note that this is ONLY the starting point. I have not researched subsequent decisions, or whether the CA legislature has done anything to alter the holding in that case. Nor do I know if the fact that the bank is a "national" bank as opposed to an entity chartered by a state at all relevant. This is ONLY the place to start your research.
I would have to read the language of your agreement, but it would appear that you also need to get around the arbitration provision in your agreement. Tarrant Bell only talks about judicial references, not arbitrations. The arbitration agreement will be much harder. You will need to prove unconscionability, which is not easy. Much will depend on the exact language used in the arbitration provision in your contract.
There are lots of decisions by the California courts on the enforceability of arbitration provisions by the California courts. I hesitate to point you to just one, since I don't know what your agreement says. This is an area where you will hone your research skills.
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