Preview
MORGAN, LEWIS & BOCKIUS LLP
Molly Moriarty Lane, Bar No. 149206
molly.lane@morganlewis.com
Mark W. Allen, Bar No. 293155
mark.allen@morganlewis.com
Kevin M. Benedicto, Bar No. 305802
kevin.benedicto@morganlewis.com
One Market, Spear Street Tower
San Francisco, California 94105-1596
Telephone: +1.415.442.1000
Facsimile: +1.415.442.1001
Attorneys for Defendant
BMW OF NORTH AMERICA, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
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GEORGE LEWBEL, an individual, Case No. 21CV003016
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Plaintiff, Assigned for All Purposes to the
13 Honorable Carrie M. Panetta, Dept. 14
v.
14 DECLARATION OF PAUL GIOVINO
BMW OF NORTH AMERICA, LLC; and IN SUPPORT OF DEFENDANT BMW
15 DOES 1 - 20, inclusive, OF NORTH AMERICA, LLC’S
MOTION TO COMPEL
16 Defendants. ARBITRATION AND STAY ALL
PROCEEDINGS
17
Date Action Filed: September 23, 2021
18 Trial Date: None
12 Hearing Date: February 25, 2022
‘ime: 8:30 a.m.
20 Judge: Hon. Carrie M. Panetta
Dept: 14
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MORGAN, Lewis&
Bockris LLP DECLARATION OF PAUL GIOVINO ISO DEFENDANT'S
arora Laie MOTION TO COMPEL ARBITRATION AND STAY ALL PROCEEDINGS
SanFeancnco DB2/ 42073969.1
DECLARATION OF PAUL GIO’
I, Paul Giovino, the undersigned, declare as follows:
1 Iam an employee of BMW of Monterey as the General Manager, located at
1 Geary Plaza, Seaside, CA 93955. I am over the age of 18. As the General Manager, I am able
to access documents, including repair records and sales files, and have the authority to certify
records.
2, The records attached hereto as Exhibit A are true and correct copies of the original
documents from our files. I have control over these documents because these files are prepared
9 by BMW of Monterey in its ordinary course of business close in time to when a vehicle is leased
10 or purchased, The sales contract is presented to a customer for his or her review; and when
1 executed, the sales contract is scanned and saved into a customer sales file for the customer.
12 3, Exhibit A is a true and correct copy of the “Motor Vehicle Retail Installment
13 Contract — California” between BMW of Monterey and Plaintiff George Lewbel for the Subject
14 Vehicle, a 2019 BMW X3 xDrive30i, VIN SUXTR9CS9KLP96651, dated May 23, 2019.
15: I declare under penalty of perjury under the laws of the State of California that the
16 foregoing is true and correct.
17 Executed on this l 2 day of January, 2022 at Monterey, California.
18 a &
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20 Pal Giovino
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MORGAN, Lewis &
Bockius LLP 2
Ariss arLaw
SisFeanonco DB2/ 42073969.1
DECLARATION OF PAUL GIOVINO ISO OF DEFENDANT'S:
MOTION TO COMPEL ARBITRATION AND STAY ALL PROCEEDINGS
EXHIBIT A
BMW Financial Services NA, LLC
Motor Vehicle Retail Installment Contract - California
BUYER(S) GEORGE S LEWBEL SELLER
Name Name BMW of Monterey
Address (include County and Zip Code) Address
299 TABOR DR 1 Geary Plaza
SCOTTS VALLEY CA 95066 Seaside
CA 93955
Billing Address (if different)
DATE OF CONTRACT 05/23/20\: \
This Motor Vehicie Retail Installment Contract (“Contract”) is entered into between the buyer(s) (“Buyer”) and the seller\"Seller”) named above. Unless otherwise
‘specified,
“I", “me” and “my” refer to the Buyer and “you” and “your”refer to the Seller or to the vehicle described
below. |
promise to pay you the Total of Payments in accordance with the Payment Schedule s b> ‘acknowledge it | am purchasing
the Vehicle from Seller
on an installment basis and accept the Vehicle in its present condition, including all its ec od cot ories.
pae'Sea
New Year
2019
Model
X3 xDrive30i rrocpu
races
fehicle Ident
5UX
ition Odometer Ri ding Personal Use
ZZ Seoln
OUsed O Business Use
G Telephone CD Player aGPS (specify)
RM el ie) pg) tle: Mel 0) 1-9 Cee
| ANNUAL PERCENTAGE FINANCE CHARGE Payments Total Sale Price
RATE The dollar amount the credit ount | will have paid ‘The total
cost of my
The cost of my credit
as a credit
will cost me. provitied on my Ihave made all on credit, cluding my
its as scheduled. downpayment of
$ 17,150.00
3.99 % 1S 4,325.00 40,58) 44,914.20 e/$ 62,064.20 _¢@
aN eal aed
Number of Payments of P: When Payments
Are Due
60
[ 7487 \ Monthly, beginning 07/07/2019
1. Deferred Downpayment (if applicable) 0.00
2. Balloon Payment (if applicable)
Lam giving a
LATE CHARGE. orton
If all or any portion of the Vehicle.
is more than 10 days late, ll be, 90d Sie of the pert of the payment that is ate.
PREPAYMENT. If | pay off this Contract at be charged a minimum
Please
read this Contr for ont wlamanareey interests, nonpayment, default, and the right to require repayment in
full before
the sched ‘maturity
yaate.
3353e (10/13) (CA) Page
1 of 7
bees rei le) Re) ra eel ea lei 8)
1. Total Cash Price
A. Cash Price of Motor Vehicle and Accessories $s 52,295 00 (A) AUTO BROKER FEE DISCLOSURE
1. Cash Price Vehicle $ 52,295.00
te 293.00 If this Contract reflects the retail sale of a new motor
2. Cash Price Accessories $ 0.00 vehicle, the saleis not subject to a fee received by an auto
3. Other (Nontaxable) broker from the seller unless the following box is
Describe_N/A S. 0.00
checked:
Describe_N/A S. 0.00
B. Document Processing Charge (not a governmental fee) 85 00 (B)
C. Smog Fee paid to Seller 00 (C) O Name of ing fee, if applicable
D. Theft Deterrent Device* (to whom paid) N/A 00 (D)
E. Theft Deterrent Device* (to whom paid)_N/A 00 (E)
SO
F. Surface Protection* (to whom paid)_N/A 00 (F)
G. Surface Protection® (to whom paid)_N/A. 00 (G)
H. Sales Tax (on taxable items in A through G) 4,714 2.00 /
|. Electronic Vehicle Registration or Transfer Charge
{not a governmental fee)* (to whom paid) CVR___ 30 20. @)
J. (Optional) Service Contract* (to whom paid)_N/A 00 |,
K. (Optional) Service Contract* (to whom paid)_N/A. (kK) NOTICE OF RESC! 101 IGHTS
L. (Optional) Service Contract* (to whom paid)_N/A. 00 if B and Co-Buyer sign the Rescission
M. (Optional) Service Contract* (to whom paid) N/A 9.09/(m) found in Section 15, giving the Seller the right
N. (Optional) Service Contract* (to whom paid) N/A 0f
LZ 10. (N) to id if Seller is unable to assign this Contract to
O. Prior Credit or Lease Balance paid by Seller to
a finat institution, will apply.
NA 0.00 (0)
(see downpayment and trade-in calculation)
P. (Optional)
Gap Contract (to whom paid)*_N/A oP) 's Signatur re:
Q. (Optional) Used Vehicle Contract Cancellation
Option Agreement _N/A 10 (Q)
hee
R. Other (to whom paid)*_N/A 0.01
S. Other (to whom paid)*_N/A 0.00 (s)
T. Other (to whom paid)*_N/A 0>90 (1)
Signature:
U. Other (to whom paid)*_N/A
Total Cash Price (A through U) o(1)
2. Amounts Paid to Public Officials
A. License Fees 340.00 (ay
B. Registration/Transfer/Titling Fees 248.00] @)
C. California Tire Fees* 7.09 (Cc)
D. Other N/A
E. Other N/A 0/00 ¢
Total Official Fe (A throug 595002)
3. Amount Paid to I
(Total premiums fo 2Cti and 6(b)) 0.00(3)
4. Smog Certifi Exemption
Fee Paid to S! 20.00(4)
5. Subtotal
(1 trough 4) 57, 739.20(5)
6. Total Down,
A. Agreed Trad Value Yr, To 3,650.00 (ay
Model_HIG Odom _149, 04
VIN _JTE area 027837
B. Less Prior Cre {Js 00 (8)
C. Net Trade-In (A a negati 3,650 90 (Cc)
D. Deferred Downy 00 (0)
E. Manufacturer's Rebate 3,500 00 (E)
F. Other oO 00 (F)
G. Cash N/A 10,000 00 (G)
aera Downpayment (C through G) 17,150.00)
}, enter Zero on line 6 and enter the amount less
{har Zero asa positive number on line 1(0) above)
7. Amount Financed (5 less 6) $s 40,589.20(7)
*Seller may keep part of these amounts.
The Seller may assign this Contract and receive a fee or other
consideration for facilitating my financing.
3353e (10/13) (CA) Page
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Beak eae ical
Aservice contract is not required to obtain credit and will not be provided unless | sign and agree to pay the cost(s) of the service contract shown
in 4.1.J through Section
4.1.N on page 2. The service contract issued by the Provider will describe the terms and conditions in further detail
By signing below, | agree to purchase the service contract for the term and cost indicated.
5.1.J Provider: N/A. Cost: $, 0.00
Term: o months or 2 miles, whichever occurs first.
5.1.K Provider: N/A Cost: $. 0.00
Term: o
5.1.L Provider:
months or
N/A
0 miles, whichever occurs first.
\ Cost: $, 0.00
Term: 2
5.1.M Provider: N/A
months or 2 miles, whichever occurs first.
\\ Cost: $. 0.00
Term: o
5.1.N Provider: _N/A
months or
Term: __Q_____ months or___g
2 miles, whichever occurs first.
smiles, whichever occurs first.
\\ cats 0.00
Buyer's Signature Co-Bi
eSionae
i Pmelagle),
Tl ilel Seam) i)
{7 lel
STATEMENT OF INSURANCE
NOTICE: No person is required, as a condition precedent to financing the pu chasé of tomobile, to purchase
or n ce through
aparticular insurance company, agent or broker.
I wish to purchase the following insurance: Term
Collision 0.00$. Ded. Mos. 00
Comprehensive, 0.00 Ded. Mos. sZ_ fo 00
Fire, $. 0.00 Ded. Mos. 00
Bodily Injury S_____0.00 Limits ______o_ Mos. 00
Property Damage §. 0.00 Limits 0 Mos. 00
Medical $. 0.00 Ded. Mos.
‘otal Insurance Premiums $.
Seller's Signature: X _* wf fj Buyer's Signature: X _* Co-Buyer’s Signature: X
UNLESSA CHARGE IS INCLUDED IN THIS oe, FOR PUBLIC LIAB!LIT QR PRORERTY DAMAGE INSURANCE, PAYMENT FOR SUCH
COVERAGE IS NOT PROVIDED BY THIS AG!
APPLICATION FOR ONAL, CREDIRINS' ICE
Credit life or disability insurance is not requi to obtain credit
and will not unless| agree to pay the premium. The policies
or certificates
issued by the insurer will describe the terms and. sin further detail. By signing yt to pay for the following insurance for the terms and premiums indicated.
Credit Life: ()Buyer Only [ Joint Insur: e Credit Disability: /Buyer
Term Premium)
Credit Life o Mos. 0.po
Credit Disability o Mos. me 000
Total Credit Insurance 9/.00¢h)
Name of Insurer(s):
Home Office Add: 7
NA —/
The amount of cr
date. Credi
insurance ends.
ityi
insurance is based on the original schedule of payments in this Contract and may not
rance does not cover an ins
original due date for the last
in my payment or the number of payments. Coverage
unless a different term is shown above.
Je all | owe if | make payments after the due
Credit life insurance and credit ty
lam applying credit insurance marked ignature below means that | agree that: 1.1 am not eligible for insurance if | have reached
my 65th lam eligible for disability only if | am working for wages or profit 30 hours a week or more on the Effective Date.
igible for disabil ILITY INSURANCE MAY NOT COVER CONDITIONS FOR WHICH | HAVE SEEN A
77
DOCTOR OR ACHI RACTOR
IN THE LAST $IX (Refers to “Total Disability Not Covered” in the policy for details.)
Age
Date “Do-Buyer's Signature Age
In the following notice, the Buyer Is referred to as “you”.
‘THE MINIMUM PUBLIC LIABILITY INSURANCE LIMITS PROVIDED IN LAW MUST BE MET BY EVERY PERSON WHO PURCHASES A VEHICLE. IF YOU ARE UNSURE WHETHER OR NOT
YOUR INSURANCE POLICY WILL COVER YOUR NEWLY ACQUIRED VEHICLE IN THE EVENT OF AN ACCIDENT, YOU SHOULD CONTACT YOUR INSURANCE
WARNING: YOUR PRESENT POLICY MAY NOT COVER DAMAGE OR MAY NOT PROVIDE FOR FULL REPLACEMENT COSTS FOR THE VEHICLE BEING PURCHASED.
YOU DO NOT HAVE FULL ‘SUPPLEMENTAL COVERAGE DAMAGE MAY BE AVAILABLE TO YOU THROUGH YOUR INSURANCE AGENT OR THROUG!
THE: UNLESS eeSPECIFIED, THE COVERAGE [A THROUGH THE DEALER PROTECTS UP TO THE
AMOUNT OF THE UNPAID REMAINING VEHICLE HAS BEEN REPOSSESSED ). FOR ADVICE ON COVERAGE THAT AFMLL
Wil PROTECT Youll
EVENT LOSS OR DAMAGE TO YOUR VESICLE YOU SHOULD CONTACT YOUR NSURANGE AGENT THE BUYER SHALL SIGN TO ACKNOWLEDGE THAT HE/SHE UNDERSTANDS
THESE PUBLIC LIABILITY
SIS Xs. Xx,
3353e (10/13) (CA) Page
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GAP (debt cancellation contract) is not required to obtain credit and | may purchase it from anyone | want who is reasonably acceptable to the
Seller. | may purchase GAP under this Contract by signing below and agreeing to pay the purchase price, shown in on page 2. See my GAP
Contract for details on the protection it provides. It is part of this contract.
Term____Omos. Name of GAP Contract:_N/A
Buyer's Signature Co-Buyer's Signature
PR SUSUTe a Siler vale
lagree to maintain the insurance described in Section 11. \ affirm that such insurance is in force on eof this Contract. | authorize Seller and
Seller's assignees to speak to my insurance agent or company, and any future insurance agents or co
7051.
q “i y coverage for the Vehicle.
Insurance Company Policy No. cam jified (Center Employee's Initials)
ALESE GREENE
\\
Agent Name Address Phone Ne
All matters regarding insurance should be emailed to insuranceinfo@bmwfs.com or faxed to (888) 725-8456.
erento
This paragraph only applies to a Balloon Payment, which is a final payment A REQUIREMENTS. For the term o ohtyact | must obtain
and
that is more than twice as large as the average of all prior scheduled payments. maint rance coverage for loss of orp phy to the Vehicle
‘When my balloon payment is due, | may either: (a) pay the Balloon Payment (ci collision, fire and theft cover jount equal to the
in full in cash; or (b) if | qualify, refinance the Balloon Payment with you, cash value the Vehicle. The maximum deddctib allowedfor collision
your then prevailing rates, terms, and conditions. andgo erages is $1,000. | have the ojttion of obtaining this
irance thi jh an insurer of my choice that is acceptable to you. |
ust designate yo loss payee on such insurance. The policy must provide
BUN See ki se ees you with at least BO d advance notice of any amendment to or cancellation
of coverage.| rg ish satisfactory evidence that the Vehicle continues
A. SIMPLE INTEREST CONTRACT. | understand that this is mpl to be adequately cg red by required insurance for the entire term of the
interest contract. The Finance Charge will be figured on a daily at Contract, up for such insurance is included in the Contract. If
Annual Percentage Rate on the unpaid part of the Amount Fina c: ller it anyti ‘during the term of the Contract | fail to maintain or evidence the
may receive part of the Finance Charge. Ce, you may, as permitted by law and at your option, purchase
in hich covers both my and your interests in the Vehicle or which
1 Payments are first credited to the earned and unpaid part of the Finance co SO our interest in the Vehicle. If you buy either of these coverages,
Charge, to the unpaid balance of the Amount Financed and to other will ify me and describe the charge | must pay. The charge will be
amounts | owe under this Contract in any order you choo y last ‘1) in equal installments along with the remaining monthly
Payment, you will advise me of any amounts owed d any amo and jonsiet of tha cost of insurance plus interest at the Annual
owed tome. enon this Contract;or (2) within 10 days of written notice
2. The Finance Charge, Total of Payments, aT e Price shown will be secured by the Vehicle.
on page 1 are based on the ass that | will make every
Payment on the day it is due. The Finance Qharg ‘, Total of Payments, and SURANCE C)} GES RETURNED TO SELLER OR SELLER'S
Total Sale Price will be more if | pay late ahd $s if | pay early. Cl SS GNE . If any charge for required insurance is returned to you, it may
may take the form of a larger or smaller lent or, at your option, dited to my account or used to buy similar insurance or insurance which
more or fewer payments of the same unt s my scheduled payment co interest in the Vehicle. Any refund on optional insurance contracts
with a smallerfinal payment. | will be sent\a notic telling me about these d by you will be credited to my account. These credits will be applied
changes before the final scheduled pay isd many of my installments as they will cover, nognniog with the final
in it and continuing in reverse order of matur
| may prepay all or part of the unpaid partof ount Financed at
any time before payment is due. 1 do so, must pay the earned and DIT DISABILITY CLAIM PROCEDURE. If | become disabled, | will
unpaid Finance Charge and amounts’ jue up te he date of my 6u right away. (| will send this information to the same address
to which
payment. As of the dateo y if the mis mum final charg normally required to send my payments, unless a different address or
greater than the Eai Finance | t bect ged ifference; felephone number is given to me in writing by you as the location where you
the minimum finar Ig€ (1) $25 if the oupt would like to be notified.) You will tell me where to get claim forms. | will send
Financed does ofexct a$1, 000, (2) $50 if the original Amoun in the completed form to the insurance company as soon as possible and tell
is more than $ 000 not more than $2,000, or (: 3), $75 if the original you as soon as I do.
Amount Fi ged is, ore than $2,
If my disability insurance covers all of my missed payment, YOU CANNOT
B. RETURNED DS. if any check | give to you retut ed unpaid for TRY TO COLLECT WHAT I OWE OR FORECLOSE UPON OR REPOSSESS
any reason,
| pro ise io pay you a reasonable processing fe not to exceed ANY COLLATERAL UNTIL THREE CALENDAR MONTHS AFTER my first
$15. Iwill pay costs to collectwhat | o },incliding attorney missed payment is due or until the insurance company pays or rejects my
fees, court costs, §0 ctio agency fees, and fees paid for ot! reasonable claim, whichever comes first. You can, however, try to collect, foreclose, or
collection efforts. repossess if | have money due and owing you or am otherwise in default when
my disability claim is made or if a senior mortgage or lienholder is foreclosing.
C. SECURITYI ERES Ig gt you a securityi est : (1) the Vehicle; If the insurance company pays the claim within the three calendar months, you
(2) all proceeds of such’ d (3) totl tent i d by state must accept the money as though | paid on time. If the insurance company
law, the loss proceeds of Vehicle ce and, ‘the cost is included rejects the claim within the three calendar monthsor accepts the claim within
in the monthly payment unde} th Contract, roceeds, cancellation the three calendar months as a partial disability and pays less than for a total
refunds or rights of any service or protection contract. disability, | will have 35 days from the date that the rejection or the acceptance
This security interest secures payment and performance of my obligations of the partial disability claim is sent to pay past due payments, or the difference
under the Contract, or any extensions thereof, including any indebtedness between past due payments and what the insurance company pays for the
subsequently arising because of my failure to perform such obligations. partial disability, plus late charges. | may contact you, and you will tell me
how much I owe. After that time, you can take action to collect or foreclose
| agree to fully cooperate with you to perfect your security interest in the or repossess any collateral | may have given.
Vehicle, including, but not limited to, paying applicable titling and registration
fees, obtaining a smog and/or safety inspection from an authorized inspection If the insurance company accepts my claim but requires that | send in
‘station, obtaining applicable inspections of the vehicle identification number additional forms to remain eligible for continued payments, | should send in
from the appropriate law enforcement or other government official(s), and these completed additional forms no later than required. If | do not send in
providing you with inspection certificates and other documents necessary these forms on time, the insurance company may stop paying, and you will
3353e (10/13) (CA) Page
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then be able to take action to collect or foreclose or repossess any collateral paid
in full. As my attorney-in-fact, you can sign on my behalf all Certificates of
I may have given. lip, Registration Cards, applications, affidavits
or any other documents
required to register and properly perfect your security interest in the Vehicle;
act on my behalf in insurance matters relating to the Vehicle, including, but
not limited to, the power to endorse insurance proceeds checks or drafts
on my behalf; and cancel any Credit Life, Credit Disability, GAP coverage or
A. WARRANTIES. | understand that you are not offering any express other optional insurance, or any Extended Warranty, service contract, or any
warranties unless you have given a written warranty to me. If you extend, or other contract or service financed under this Contract, and apply the refunded
the Vehicle’s manufacturer extends, a written warranty or service contract premium or cost to my outst ding balance
if | am in default.
covering the Vehicle within 90 days from the date of this Contract, | get implied
warranties of merchantability and fitness for a particular purpose covering the
Vehicle. If not, you specifically disclaim any implied warranties of aimee)
pa le) Teas s1 i)
merchantability and fitness for a particular purpose covering the Vehicle.
B. VEHICLE USE. | agree that | will: (1) not garage the Vehicle at an address Lunderstand
that: (A) | have nk right to assign any of my rights under this
other than the address shown on this Contract without your written consent Contract, although you may or interests under this Contract without
and will notify you of changes in my address; (2) not sell the Vehicle without my consent; (B) you may wai or delay the enforcement of your rights
your written consent; (3) except for less than 30 days in Canada, not operate under this Contract without aff Ing rights on future defaults; (C) any
the Vehicle outside of the contiguous United States and Alaska and Hawaii; Portion of this Contract which d unenforceable shall not affect the
(4) not allow alien to be placed upon the Vehicle; (5) not abandon the Vehicle enforceability of‘other Portions of iis Co tract; (D) if more than one buyer
or use it for hire or illegally; (6) maintain the Vehicle in good condition and have has signed ach one lb jointly and severally liable for ail
the Vehicle serviced and maintained in accordance with the manufacturer's obligatio under ‘this Contract; ondence and notices will be
recommendations and specifications, so long as | have obligations under ‘sent to my Address shown on Contract unless | give you a
this Contract; (7) permit you to inspect the Vehicle at any reasonable time; different address in writing; ont ill be governed
by the laws
(8) not tamper, disable or otherwise alter the odometer; and (9) pay when due ofthe stato your place of business gon this ontract. This Contract
all taxes and assessments levied on the Vehicle. Should | fail to promptly pay of the agreements with r to t retail installment
any lien, encumbrance or taxes on the Vehicle, you may do so on my behalf. of the between you and me &nd all or agreements,
are
In such event, | must immediately reimburse you for the cost thereof. If | do
not immediately reimburse you, such cost, plus interest at a rate not to exceed
the Annual Percentage Rate disclosed in Section
3 on page 1 of this Contr:
eee
will be added to the amount | owe under this Contract. Rescission Rights
a. Seller agre to déliver the Vehicle
to me on the date this Contract
Preview
MORGAN, LEWIS & BOCKIUS LLP Molly Moriarty Lane, Bar No. 149206 molly.lane@morganlewis.com Mark W. Allen, Bar No. 293155 mark.allen@morganlewis.com Kevin M. Benedicto, Bar No. 305802 kevin.benedicto@morganlewis.com One Market, Spear Street Tower San Francisco, California 94105-1596 Telephone: +1.415.442.1000 Facsimile: +1.415.442.1001 Attorneys for Defendant BMW OF NORTH AMERICA, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY 10 11 GEORGE LEWBEL, an individual, Case No. 21CV003016 12 Plaintiff, Assigned for All Purposes to the 13 Honorable Carrie M. Panetta, Dept. 14 v. 14 DECLARATION OF PAUL GIOVINO BMW OF NORTH AMERICA, LLC; and IN SUPPORT OF DEFENDANT BMW 15 DOES 1 - 20, inclusive, OF NORTH AMERICA, LLC’S MOTION TO COMPEL 16 Defendants. ARBITRATION AND STAY ALL PROCEEDINGS 17 Date Action Filed: September 23, 2021 18 Trial Date: None 12 Hearing Date: February 25, 2022 ‘ime: 8:30 a.m. 20 Judge: Hon. Carrie M. Panetta Dept: 14 21 22 23 24 25 26 27 28 MORGAN, Lewis& Bockris LLP DECLARATION OF PAUL GIOVINO ISO DEFENDANT'S arora Laie MOTION TO COMPEL ARBITRATION AND STAY ALL PROCEEDINGS SanFeancnco DB2/ 42073969.1 DECLARATION OF PAUL GIO’ I, Paul Giovino, the undersigned, declare as follows: 1 Iam an employee of BMW of Monterey as the General Manager, located at 1 Geary Plaza, Seaside, CA 93955. I am over the age of 18. As the General Manager, I am able to access documents, including repair records and sales files, and have the authority to certify records. 2, The records attached hereto as Exhibit A are true and correct copies of the original documents from our files. I have control over these documents because these files are prepared 9 by BMW of Monterey in its ordinary course of business close in time to when a vehicle is leased 10 or purchased, The sales contract is presented to a customer for his or her review; and when 1 executed, the sales contract is scanned and saved into a customer sales file for the customer. 12 3, Exhibit A is a true and correct copy of the “Motor Vehicle Retail Installment 13 Contract — California” between BMW of Monterey and Plaintiff George Lewbel for the Subject 14 Vehicle, a 2019 BMW X3 xDrive30i, VIN SUXTR9CS9KLP96651, dated May 23, 2019. 15: I declare under penalty of perjury under the laws of the State of California that the 16 foregoing is true and correct. 17 Executed on this l 2 day of January, 2022 at Monterey, California. 18 a & 19 20 Pal Giovino 21 22 23 24 25 26 27 28 MORGAN, Lewis & Bockius LLP 2 Ariss arLaw SisFeanonco DB2/ 42073969.1 DECLARATION OF PAUL GIOVINO ISO OF DEFENDANT'S: MOTION TO COMPEL ARBITRATION AND STAY ALL PROCEEDINGS EXHIBIT A BMW Financial Services NA, LLC Motor Vehicle Retail Installment Contract - California BUYER(S) GEORGE S LEWBEL SELLER Name Name BMW of Monterey Address (include County and Zip Code) Address 299 TABOR DR 1 Geary Plaza SCOTTS VALLEY CA 95066 Seaside CA 93955 Billing Address (if different) DATE OF CONTRACT 05/23/20\: \ This Motor Vehicie Retail Installment Contract (“Contract”) is entered into between the buyer(s) (“Buyer”) and the seller\"Seller”) named above. Unless otherwise ‘specified, “I", “me” and “my” refer to the Buyer and “you” and “your”refer to the Seller or to the vehicle described below. | promise to pay you the Total of Payments in accordance with the Payment Schedule s b> ‘acknowledge it | am purchasing the Vehicle from Seller on an installment basis and accept the Vehicle in its present condition, including all its ec od cot ories. pae'Sea New Year 2019 Model X3 xDrive30i rrocpu races fehicle Ident 5UX ition Odometer Ri ding Personal Use ZZ Seoln OUsed O Business Use G Telephone CD Player aGPS (specify) RM el ie) pg) tle: Mel 0) 1-9 Cee | ANNUAL PERCENTAGE FINANCE CHARGE Payments Total Sale Price RATE The dollar amount the credit ount | will have paid ‘The total cost of my The cost of my credit as a credit will cost me. provitied on my Ihave made all on credit, cluding my its as scheduled. downpayment of $ 17,150.00 3.99 % 1S 4,325.00 40,58) 44,914.20 e/$ 62,064.20 _¢@ aN eal aed Number of Payments of P: When Payments Are Due 60 [ 7487 \ Monthly, beginning 07/07/2019 1. Deferred Downpayment (if applicable) 0.00 2. Balloon Payment (if applicable) Lam giving a LATE CHARGE. orton If all or any portion of the Vehicle. is more than 10 days late, ll be, 90d Sie of the pert of the payment that is ate. PREPAYMENT. If | pay off this Contract at be charged a minimum Please read this Contr for ont wlamanareey interests, nonpayment, default, and the right to require repayment in full before the sched ‘maturity yaate. 3353e (10/13) (CA) Page 1 of 7 bees rei le) Re) ra eel ea lei 8) 1. Total Cash Price A. Cash Price of Motor Vehicle and Accessories $s 52,295 00 (A) AUTO BROKER FEE DISCLOSURE 1. Cash Price Vehicle $ 52,295.00 te 293.00 If this Contract reflects the retail sale of a new motor 2. Cash Price Accessories $ 0.00 vehicle, the saleis not subject to a fee received by an auto 3. Other (Nontaxable) broker from the seller unless the following box is Describe_N/A S. 0.00 checked: Describe_N/A S. 0.00 B. Document Processing Charge (not a governmental fee) 85 00 (B) C. Smog Fee paid to Seller 00 (C) O Name of ing fee, if applicable D. Theft Deterrent Device* (to whom paid) N/A 00 (D) E. Theft Deterrent Device* (to whom paid)_N/A 00 (E) SO F. Surface Protection* (to whom paid)_N/A 00 (F) G. Surface Protection® (to whom paid)_N/A. 00 (G) H. Sales Tax (on taxable items in A through G) 4,714 2.00 / |. Electronic Vehicle Registration or Transfer Charge {not a governmental fee)* (to whom paid) CVR___ 30 20. @) J. (Optional) Service Contract* (to whom paid)_N/A 00 |, K. (Optional) Service Contract* (to whom paid)_N/A. (kK) NOTICE OF RESC! 101 IGHTS L. (Optional) Service Contract* (to whom paid)_N/A. 00 if B and Co-Buyer sign the Rescission M. (Optional) Service Contract* (to whom paid) N/A 9.09/(m) found in Section 15, giving the Seller the right N. (Optional) Service Contract* (to whom paid) N/A 0f LZ 10. (N) to id if Seller is unable to assign this Contract to O. Prior Credit or Lease Balance paid by Seller to a finat institution, will apply. NA 0.00 (0) (see downpayment and trade-in calculation) P. (Optional) Gap Contract (to whom paid)*_N/A oP) 's Signatur re: Q. (Optional) Used Vehicle Contract Cancellation Option Agreement _N/A 10 (Q) hee R. Other (to whom paid)*_N/A 0.01 S. Other (to whom paid)*_N/A 0.00 (s) T. Other (to whom paid)*_N/A 0>90 (1) Signature: U. Other (to whom paid)*_N/A Total Cash Price (A through U) o(1) 2. Amounts Paid to Public Officials A. License Fees 340.00 (ay B. Registration/Transfer/Titling Fees 248.00] @) C. California Tire Fees* 7.09 (Cc) D. Other N/A E. Other N/A 0/00 ¢ Total Official Fe (A throug 595002) 3. Amount Paid to I (Total premiums fo 2Cti and 6(b)) 0.00(3) 4. Smog Certifi Exemption Fee Paid to S! 20.00(4) 5. Subtotal (1 trough 4) 57, 739.20(5) 6. Total Down, A. Agreed Trad Value Yr, To 3,650.00 (ay Model_HIG Odom _149, 04 VIN _JTE area 027837 B. Less Prior Cre {Js 00 (8) C. Net Trade-In (A a negati 3,650 90 (Cc) D. Deferred Downy 00 (0) E. Manufacturer's Rebate 3,500 00 (E) F. Other oO 00 (F) G. Cash N/A 10,000 00 (G) aera Downpayment (C through G) 17,150.00) }, enter Zero on line 6 and enter the amount less {har Zero asa positive number on line 1(0) above) 7. Amount Financed (5 less 6) $s 40,589.20(7) *Seller may keep part of these amounts. The Seller may assign this Contract and receive a fee or other consideration for facilitating my financing. 3353e (10/13) (CA) Page 2 of 7 Beak eae ical Aservice contract is not required to obtain credit and will not be provided unless | sign and agree to pay the cost(s) of the service contract shown in 4.1.J through Section 4.1.N on page 2. The service contract issued by the Provider will describe the terms and conditions in further detail By signing below, | agree to purchase the service contract for the term and cost indicated. 5.1.J Provider: N/A. Cost: $, 0.00 Term: o months or 2 miles, whichever occurs first. 5.1.K Provider: N/A Cost: $. 0.00 Term: o 5.1.L Provider: months or N/A 0 miles, whichever occurs first. \ Cost: $, 0.00 Term: 2 5.1.M Provider: N/A months or 2 miles, whichever occurs first. \\ Cost: $. 0.00 Term: o 5.1.N Provider: _N/A months or Term: __Q_____ months or___g 2 miles, whichever occurs first. smiles, whichever occurs first. \\ cats 0.00 Buyer's Signature Co-Bi eSionae i Pmelagle), Tl ilel Seam) i) {7 lel STATEMENT OF INSURANCE NOTICE: No person is required, as a condition precedent to financing the pu chasé of tomobile, to purchase or n ce through aparticular insurance company, agent or broker. I wish to purchase the following insurance: Term Collision 0.00$. Ded. Mos. 00 Comprehensive, 0.00 Ded. Mos. sZ_ fo 00 Fire, $. 0.00 Ded. Mos. 00 Bodily Injury S_____0.00 Limits ______o_ Mos. 00 Property Damage §. 0.00 Limits 0 Mos. 00 Medical $. 0.00 Ded. Mos. ‘otal Insurance Premiums $. Seller's Signature: X _* wf fj Buyer's Signature: X _* Co-Buyer’s Signature: X UNLESSA CHARGE IS INCLUDED IN THIS oe, FOR PUBLIC LIAB!LIT QR PRORERTY DAMAGE INSURANCE, PAYMENT FOR SUCH COVERAGE IS NOT PROVIDED BY THIS AG! APPLICATION FOR ONAL, CREDIRINS' ICE Credit life or disability insurance is not requi to obtain credit and will not unless| agree to pay the premium. The policies or certificates issued by the insurer will describe the terms and. sin further detail. By signing yt to pay for the following insurance for the terms and premiums indicated. Credit Life: ()Buyer Only [ Joint Insur: e Credit Disability: /Buyer Term Premium) Credit Life o Mos. 0.po Credit Disability o Mos. me 000 Total Credit Insurance 9/.00¢h) Name of Insurer(s): Home Office Add: 7 NA —/ The amount of cr date. Credi insurance ends. ityi insurance is based on the original schedule of payments in this Contract and may not rance does not cover an ins original due date for the last in my payment or the number of payments. Coverage unless a different term is shown above. Je all | owe if | make payments after the due Credit life insurance and credit ty lam applying credit insurance marked ignature below means that | agree that: 1.1 am not eligible for insurance if | have reached my 65th lam eligible for disability only if | am working for wages or profit 30 hours a week or more on the Effective Date. igible for disabil ILITY INSURANCE MAY NOT COVER CONDITIONS FOR WHICH | HAVE SEEN A 77 DOCTOR OR ACHI RACTOR IN THE LAST $IX (Refers to “Total Disability Not Covered” in the policy for details.) Age Date “Do-Buyer's Signature Age In the following notice, the Buyer Is referred to as “you”. ‘THE MINIMUM PUBLIC LIABILITY INSURANCE LIMITS PROVIDED IN LAW MUST BE MET BY EVERY PERSON WHO PURCHASES A VEHICLE. IF YOU ARE UNSURE WHETHER OR NOT YOUR INSURANCE POLICY WILL COVER YOUR NEWLY ACQUIRED VEHICLE IN THE EVENT OF AN ACCIDENT, YOU SHOULD CONTACT YOUR INSURANCE WARNING: YOUR PRESENT POLICY MAY NOT COVER DAMAGE OR MAY NOT PROVIDE FOR FULL REPLACEMENT COSTS FOR THE VEHICLE BEING PURCHASED. YOU DO NOT HAVE FULL ‘SUPPLEMENTAL COVERAGE DAMAGE MAY BE AVAILABLE TO YOU THROUGH YOUR INSURANCE AGENT OR THROUG! THE: UNLESS eeSPECIFIED, THE COVERAGE [A THROUGH THE DEALER PROTECTS UP TO THE AMOUNT OF THE UNPAID REMAINING VEHICLE HAS BEEN REPOSSESSED ). FOR ADVICE ON COVERAGE THAT AFMLL Wil PROTECT Youll EVENT LOSS OR DAMAGE TO YOUR VESICLE YOU SHOULD CONTACT YOUR NSURANGE AGENT THE BUYER SHALL SIGN TO ACKNOWLEDGE THAT HE/SHE UNDERSTANDS THESE PUBLIC LIABILITY SIS Xs. Xx, 3353e (10/13) (CA) Page 3 of 7 GAP (debt cancellation contract) is not required to obtain credit and | may purchase it from anyone | want who is reasonably acceptable to the Seller. | may purchase GAP under this Contract by signing below and agreeing to pay the purchase price, shown in on page 2. See my GAP Contract for details on the protection it provides. It is part of this contract. Term____Omos. Name of GAP Contract:_N/A Buyer's Signature Co-Buyer's Signature PR SUSUTe a Siler vale lagree to maintain the insurance described in Section 11. \ affirm that such insurance is in force on eof this Contract. | authorize Seller and Seller's assignees to speak to my insurance agent or company, and any future insurance agents or co 7051. q “i y coverage for the Vehicle. Insurance Company Policy No. cam jified (Center Employee's Initials) ALESE GREENE \\ Agent Name Address Phone Ne All matters regarding insurance should be emailed to insuranceinfo@bmwfs.com or faxed to (888) 725-8456. erento This paragraph only applies to a Balloon Payment, which is a final payment A REQUIREMENTS. For the term o ohtyact | must obtain and that is more than twice as large as the average of all prior scheduled payments. maint rance coverage for loss of orp phy to the Vehicle ‘When my balloon payment is due, | may either: (a) pay the Balloon Payment (ci collision, fire and theft cover jount equal to the in full in cash; or (b) if | qualify, refinance the Balloon Payment with you, cash value the Vehicle. The maximum deddctib allowedfor collision your then prevailing rates, terms, and conditions. andgo erages is $1,000. | have the ojttion of obtaining this irance thi jh an insurer of my choice that is acceptable to you. | ust designate yo loss payee on such insurance. The policy must provide BUN See ki se ees you with at least BO d advance notice of any amendment to or cancellation of coverage.| rg ish satisfactory evidence that the Vehicle continues A. SIMPLE INTEREST CONTRACT. | understand that this is mpl to be adequately cg red by required insurance for the entire term of the interest contract. The Finance Charge will be figured on a daily at Contract, up for such insurance is included in the Contract. If Annual Percentage Rate on the unpaid part of the Amount Fina c: ller it anyti ‘during the term of the Contract | fail to maintain or evidence the may receive part of the Finance Charge. Ce, you may, as permitted by law and at your option, purchase in hich covers both my and your interests in the Vehicle or which 1 Payments are first credited to the earned and unpaid part of the Finance co SO our interest in the Vehicle. If you buy either of these coverages, Charge, to the unpaid balance of the Amount Financed and to other will ify me and describe the charge | must pay. The charge will be amounts | owe under this Contract in any order you choo y last ‘1) in equal installments along with the remaining monthly Payment, you will advise me of any amounts owed d any amo and jonsiet of tha cost of insurance plus interest at the Annual owed tome. enon this Contract;or (2) within 10 days of written notice 2. The Finance Charge, Total of Payments, aT e Price shown will be secured by the Vehicle. on page 1 are based on the ass that | will make every Payment on the day it is due. The Finance Qharg ‘, Total of Payments, and SURANCE C)} GES RETURNED TO SELLER OR SELLER'S Total Sale Price will be more if | pay late ahd $s if | pay early. Cl SS GNE . If any charge for required insurance is returned to you, it may may take the form of a larger or smaller lent or, at your option, dited to my account or used to buy similar insurance or insurance which more or fewer payments of the same unt s my scheduled payment co interest in the Vehicle. Any refund on optional insurance contracts with a smallerfinal payment. | will be sent\a notic telling me about these d by you will be credited to my account. These credits will be applied changes before the final scheduled pay isd many of my installments as they will cover, nognniog with the final in it and continuing in reverse order of matur | may prepay all or part of the unpaid partof ount Financed at any time before payment is due. 1 do so, must pay the earned and DIT DISABILITY CLAIM PROCEDURE. If | become disabled, | will unpaid Finance Charge and amounts’ jue up te he date of my 6u right away. (| will send this information to the same address to which payment. As of the dateo y if the mis mum final charg normally required to send my payments, unless a different address or greater than the Eai Finance | t bect ged ifference; felephone number is given to me in writing by you as the location where you the minimum finar Ig€ (1) $25 if the oupt would like to be notified.) You will tell me where to get claim forms. | will send Financed does ofexct a$1, 000, (2) $50 if the original Amoun in the completed form to the insurance company as soon as possible and tell is more than $ 000 not more than $2,000, or (: 3), $75 if the original you as soon as I do. Amount Fi ged is, ore than $2, If my disability insurance covers all of my missed payment, YOU CANNOT B. RETURNED DS. if any check | give to you retut ed unpaid for TRY TO COLLECT WHAT I OWE OR FORECLOSE UPON OR REPOSSESS any reason, | pro ise io pay you a reasonable processing fe not to exceed ANY COLLATERAL UNTIL THREE CALENDAR MONTHS AFTER my first $15. Iwill pay costs to collectwhat | o },incliding attorney missed payment is due or until the insurance company pays or rejects my fees, court costs, §0 ctio agency fees, and fees paid for ot! reasonable claim, whichever comes first. You can, however, try to collect, foreclose, or collection efforts. repossess if | have money due and owing you or am otherwise in default when my disability claim is made or if a senior mortgage or lienholder is foreclosing. C. SECURITYI ERES Ig gt you a securityi est : (1) the Vehicle; If the insurance company pays the claim within the three calendar months, you (2) all proceeds of such’ d (3) totl tent i d by state must accept the money as though | paid on time. If the insurance company law, the loss proceeds of Vehicle ce and, ‘the cost is included rejects the claim within the three calendar monthsor accepts the claim within in the monthly payment unde} th Contract, roceeds, cancellation the three calendar months as a partial disability and pays less than for a total refunds or rights of any service or protection contract. disability, | will have 35 days from the date that the rejection or the acceptance This security interest secures payment and performance of my obligations of the partial disability claim is sent to pay past due payments, or the difference under the Contract, or any extensions thereof, including any indebtedness between past due payments and what the insurance company pays for the subsequently arising because of my failure to perform such obligations. partial disability, plus late charges. | may contact you, and you will tell me how much I owe. After that time, you can take action to collect or foreclose | agree to fully cooperate with you to perfect your security interest in the or repossess any collateral | may have given. Vehicle, including, but not limited to, paying applicable titling and registration fees, obtaining a smog and/or safety inspection from an authorized inspection If the insurance company accepts my claim but requires that | send in ‘station, obtaining applicable inspections of the vehicle identification number additional forms to remain eligible for continued payments, | should send in from the appropriate law enforcement or other government official(s), and these completed additional forms no later than required. If | do not send in providing you with inspection certificates and other documents necessary these forms on time, the insurance company may stop paying, and you will 3353e (10/13) (CA) Page 4 of 7 then be able to take action to collect or foreclose or repossess any collateral paid in full. As my attorney-in-fact, you can sign on my behalf all Certificates of I may have given. lip, Registration Cards, applications, affidavits or any other documents required to register and properly perfect your security interest in the Vehicle; act on my behalf in insurance matters relating to the Vehicle, including, but not limited to, the power to endorse insurance proceeds checks or drafts on my behalf; and cancel any Credit Life, Credit Disability, GAP coverage or A. WARRANTIES. | understand that you are not offering any express other optional insurance, or any Extended Warranty, service contract, or any warranties unless you have given a written warranty to me. If you extend, or other contract or service financed under this Contract, and apply the refunded the Vehicle’s manufacturer extends, a written warranty or service contract premium or cost to my outst ding balance if | am in default. covering the Vehicle within 90 days from the date of this Contract, | get implied warranties of merchantability and fitness for a particular purpose covering the Vehicle. If not, you specifically disclaim any implied warranties of aimee) pa le) Teas s1 i) merchantability and fitness for a particular purpose covering the Vehicle. B. VEHICLE USE. | agree that | will: (1) not garage the Vehicle at an address Lunderstand that: (A) | have nk right to assign any of my rights under this other than the address shown on this Contract without your written consent Contract, although you may or interests under this Contract without and will notify you of changes in my address; (2) not sell the Vehicle without my consent; (B) you may wai or delay the enforcement of your rights your written consent; (3) except for less than 30 days in Canada, not operate under this Contract without aff Ing rights on future defaults; (C) any the Vehicle outside of the contiguous United States and Alaska and Hawaii; Portion of this Contract which d unenforceable shall not affect the (4) not allow alien to be placed upon the Vehicle; (5) not abandon the Vehicle enforceability of‘other Portions of iis Co tract; (D) if more than one buyer or use it for hire or illegally; (6) maintain the Vehicle in good condition and have has signed ach one lb jointly and severally liable for ail the Vehicle serviced and maintained in accordance with the manufacturer's obligatio under ‘this Contract; ondence and notices will be recommendations and specifications, so long as | have obligations under ‘sent to my Address shown on Contract unless | give you a this Contract; (7) permit you to inspect the Vehicle at any reasonable time; different address in writing; ont ill be governed by the laws (8) not tamper, disable or otherwise alter the odometer; and (9) pay when due ofthe stato your place of business gon this ontract. This Contract all taxes and assessments levied on the Vehicle. Should | fail to promptly pay of the agreements with r to t retail installment any lien, encumbrance or taxes on the Vehicle, you may do so on my behalf. of the between you and me &nd all or agreements, are In such event, | must immediately reimburse you for the cost thereof. If | do not immediately reimburse you, such cost, plus interest at a rate not to exceed the Annual Percentage Rate disclosed in Section 3 on page 1 of this Contr: eee will be added to the amount | owe under this Contract. Rescission Rights a. Seller agre to déliver the Vehicle to me on the date this Contract