Judge Anne Hwang, Case Number: 22STCV39969, Date: 2023-08-24 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Defendant Uber Technologies Inc. (“Defendant”) moves to compel Plaintiffs Lauren Turner and Sarah Burnette (“Burnette”) (collectively “Plaintiffs”) to submit their claims to arbitration. Defendant contends that (1) there is a valid and enforceable arbitration agreement; (2) Plaintiff’s claims fall within the scope of the arbitration agreement, and (3) the parties delegated to the arbitrator issues of arbitrability. Plaintiffs oppose the motion.

The court may take judicial notice of “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(h).) The court may take judicial notice of records of any court of record of the United States. (Evid. Code § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)¿Furthermore, the court need not take judicial notice if the materials are irrelevant. (See Aquila, Inc. v. Superior Court¿(2007) 148 Cal.App.4th 556, 569.)

Defendant seeks judicial notice of sixty-nine court orders enforcing the arbitration agreement in Uber’s Terms from this and other courts. Plaintiffs object that the issues decided in the prior proceedings are different from the issues in this state court proceeding and defendants were not parties to those proceedings, so the court could not take judicial notice of the prior orders. In reply, Defendant argues that it seeks only to make the Court aware via judicial notice of another Court’s Order enforcing the arbitration agreement in Uber’s Terms.

The Court denies the request for judicial notice. Even if the Court were to take judicial notice of the existence of the orders, whether or not other courts decided a similar issue is neither relevant nor persuasive.

When seeking to compel arbitration of a plaintiff’s claims, the defendant must allege the existence of an agreement to arbitrate. (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.) The burden then shifts to the plaintiff to prove the falsity of the agreement. (Ibid.) After the Court determines that an agreement to arbitrate exists, it then considers objections to its enforceability. (Ibid.) The Court must grant a petition to compel arbitration unless the defendant has waived the right to compel arbitration or if there are grounds to revoke the arbitration agreement. (Ibid.; Code Civ. Proc., § 1281.2.)

In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination. [Citation] No jury trial is available for a petition to compel arbitration. [Citation]” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) (See also Chiron Corp. v. Ortho Diagnostic Systems, Inc. (9th Cir. 2000) 207 F. 3d 1126, 1130 [“The court’s role under the [FAA] is therefore limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. [Citations]”]. The party opposing the petition to compel arbitration bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284.)

Accordingly, under both the FAA and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.)

Here, Defendant attaches its 2015, 2016, 2021, and 2023 Terms and Conditions required for all users of its Rider app to complete, which includes an arbitration agreement (“Arbitration Agreement”). (Gaddis Decl. ¶ 8, Ex. B, D, E, G.) Plaintiffs registered for their Uber Rider Accounts on August 8, 2015 (Burnette) and September 10, 2016 (Turner). (Gaddis Decl. ¶ 8.) In November 2016, Defendant updated its Terms of Use and provided notice of updates to its terms with a hyperlink in the e-mail. (Gaddis Decl. ¶ 10, Ex. D, F.) Users who clicked the hyperlink had to click the “Confirm” box at the bottom of the screen, which stated, “By checking the Box, I have reviewed and agree to the Terms of Use and Acknowledge the Privacy Notice.” (Gaddis Decl. ¶ 13, Ex. F.) Defendant provides its business records to show that Burnette consented to the Updated Term and Conditions by clicking “Confirm” on her screen on August 2, 2021, December 21, 2023, and January 20, 2023, which contained an Arbitration Agreement. (Gaddis Decl. ¶ 8, 16, Ex. A, G). Similarly, Turner consented to the terms on February 9, 2021, December 21, 2021, and January 20, 2023. (Gaddis Decl. ¶ 15.) Plaintiffs could not to use Defendant’s Rider app services without clicking the “Confirm” button. (Gaddis Decl. ¶13.)

Defendant’s evidence is sufficient to establish the existence of an agreement to arbitrate between Defendant and Plaintiffs. Plaintiffs do not dispute the existence of an Arbitration Agreement. Accordingly, Defendant met its burden of establishing the existence of a binding Arbitration Agreement between the parties.[1]

Here, the Arbitration Agreement expressly covers the Plaintiffs’ personal injury claims. “You and Uber agree that any dispute, claim, or controversy in any way arising out of or related to (i) the Terms; (ii) Plaintiffs’ access to Uber’s Services; or (iii) incidents or accidents resulting in personal injury … will be settled by arbitration between you and Uber, and not in a court of law.”) (Gaddis. Decl. Ex. G, Section 2(c).) Plaintiff’s causes of action are based on claims of negligence and violation of common carrier’s duty of care (Complaint ¶ 4.) Plaintiffs do not dispute whether the Arbitration Agreement covers their claims.

Accordingly, Defendant has met its burden of establishing the existence of an Arbitration Agreement that covers the causes of action asserted in the Complaint.

The enforceability of an arbitration agreement is generally determined by the court. (See¿Aanderud¿v. Superior Court¿(2017) 13 Cal.App.5th 880, 891;¿Ajamian¿v. CantorCO2e, L.P.¿(2012) 203 Cal.App.4th 771, 781.) However, parties may agree to arbitrate gateway questions of arbitrability such as the enforceability of an arbitration agreement and whether claims are covered by the arbitration agreement. (See¿Rent-A-Center, West, Inc. v. Jackson¿(2010) 561 U.S. 63, 68-69;¿Aanderud, supra, 13 Cal.App.5th at 891-92;¿Ajamian, supra, 203 Cal.App.4th at 781.)¿ “To establish this exception, it must be shown by ‘clear and unmistakable’ evidence that the parties intended to delegate the issue to the arbitrator.” (Ajamian, supra, 203 Cal.App.4th at 781 (citing¿First Options of Chicago, Inc. v. Kaplan¿(1995) 514 U.S. 938, 944).)¿

“‘There are two prerequisites for a delegation clause to be effective.’” (Aanderud, supra, 13 Cal.App.5th at 892 (quoting¿Tiri¿v. Lucky Changes, Inc.¿(2014) 226 Cal.App.4th 231, 242).)¿ “‘First, the language of the clause must be clear and unmistakable.’” (Id.) “‘Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.’” (Id.)¿¿

Here, the agreement provides that the “(‘Arbitrator’) and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement … the Arbitrator shall also be responsible for determining all threshold arbitrability issues.” (Gaddis Decl. Ex. G, Section 2(c). The language of the agreement indicates the validity of the Arbitration Agreement is subject to determination by an arbitrator.

In their opposition, Plaintiffs argue without any analysis that the Court should ignore the delegation clause in the Arbitration Agreement. (Opp. at pg. 5.) However, the language in the delegation clause here is clear and unmistakable. (See Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 237 [containing a substantially similar clause, i.e., “The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable.”].) Accordingly, Plaintiffs’ remaining arguments – that Plaintiff is a party to a pending court case with additional third parties (Opp. at pgs. 5-7), the agreement precludes injunctive and equitable relief (Opp. at pgs. 7-8), the preclusion of injunctive and equitable relief is unconscionable (Opp. at pgs. 8-9), and the agreement is adhesive (Opp. at pg. 9)[2] – are reserved solely for an arbitrator.

The Court sets the matter for an Order to Show Cause Re Dismissal of Case due to Completion of Arbitration Proceedings for February 23, 2024 at 8:30 a.m.

[1] Plaintiffs argue that Defendant has the burden of showing the arbitration agreement is valid and that courts determine the validity of such an agreement. (Opp. at pgs. 2-3.) Yet Plaintiffs do not appear to dispute that they entered into a valid arbitration agreement, or that it covers the claims at issue here.

[2] None of these arguments appear to assert that the delegation clause is revocable under defenses such as fraud, duress, or unconscionability. Rather, Plaintiffs appear to be arguing that the agreement as a whole is unconscionable. The Tiri court explained that in determining unconscionability in the context of a delegation clause, any claim of unconscionability must be specific to the delegation clause. (Tiri, supra, 226 Cal.App.4th 231 at pp. 242-25.) In other words, it is not enough to demonstrate that the delegation clause is part of an arbitration agreement that is unconscionable. Rather, the burden is on the party opposing arbitration to show that the delegation clause itself is unconscionable.

Plaintiffs do not meet their burden by not presenting any reasoned argument as to the delegation clause. In any event, the Court finds no procedural unconscionability regarding the delegation clause. The delegation clause is not an adhesion contract. Although there was no room to negotiate the delegation clause, Plaintiffs were not forced to use Uber’s services. This was not a situation of economic necessity, e.g., an employment contract whereby Plaintiff must accept to work and make a living. Plaintiff also had an opportunity to review the delegation clause further by declining the services at that time once presented with the pop-up agreement, allowing time to review the delegation clause before accepting the terms when requesting services from Uber. Therefore, the Court determines there is no procedural unconscionability.

Because there is no procedural unconscionability, the Court does not need to consider whether the delegation clause is substantively unconscionable.

DEPARTMENT	32
HEARING DATE	August 24, 2023
CASE NUMBER	22STCV39969
MOTION	Motion to Compel Arbitration and Stay Action
MOVING PARTY	Defendant Uber Technologies, Inc. et al.
OPPOSING PARTY	Plaintiffs Lauren Turner and Sarah Burnette