Judge: Armen Tamzarian, Case: 24STCV17896, Date: 2025-04-22 Tentative Ruling

Case Number: 24STCV17896    Hearing Date: April 22, 2025    Dept: 52

Tentative Ruling:

            Defendants Grindr, LLC and Grindr Holdings, LLC’s Motion to Compel Arbitration and Stay Case

Defendants Grindr, LLC and Grindr Holdings, LLC move to compel arbitration of this action by plaintiff Jeffrey Burrill. 

I. Evidentiary Objections

            Plaintiff makes eight objections to the declaration of Kelly Peterson Miranda in support of this motion.  All eight objections are overruled.

II. Summary of Allegations

            In this action, plaintiff alleges defendants illegally sold his personal information acquired from his use of the Grindr mobile application.  The complaint alleges, “In or about 2017, Burrill subscribed to Grindr, which describes itself as a ‘gay social networking application.’  In connection with this subscription, Grindr collected what it describes as ‘sensitive’ customer personal data from Burrill, including information about sexual orientation and his physical location.”  (Comp., ¶ 9.)  It further alleges that “throughout the entirety of his usage of Grindr, Grindr deceived Burrill by concealing that his sensitive personal information (including, without limitation, his IP address and location information) would be sold to third parties, including data vendors, and that such information was or could easily be ‘de-anonymized.’ ”  (¶ 15.)  Plaintiff alleges, “Grindr sold Burrill’s personal information to third parties … .”  (¶ 21.) 

III. Existence of Agreement

            Plaintiff argues defendants do not meet their burden of proving he entered the purported arbitration agreement.  On a motion to compel arbitration, the moving party “bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the [motion] bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.”  (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) 

A motion to compel arbitration is “a summary proceeding.”  (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057.)  The moving party can meet the “initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party’s signature.”  (Id. at p. 1060.)  For this initial burden, “ ‘it is not necessary to follow the normal procedures of document authentication.’ ”  (Id. at p. 1058.)  Only after the opposing party “challenge[s] the validity” of the agreement must the moving party “establish by a preponderance of the evidence” that the plaintiff entered the agreement via the normal procedures for authenticating documents.  (Ibid.) 

Defendants meet their burden of proving plaintiff entered the arbitration agreement in Grindr’s terms of service by pressing a button stating he agreed to the terms.  This manner of entering a contract is known as a “clickwrap” agreement.  Courts generally enforce a “ ‘clickwrap’ agreement ‘ “in which website users are required to click on an ‘I agree’ box after being presented with a list of terms and conditions of use.” ’ ”  (Doe v. Massage Envy Franchising, LLC (2022) 87 Cal.App.5th 23, 33; accord Herzog v. Superior Court (2024) 101 Cal.App.5th 1280, 1286 [“a clickwrap agreement … is generally enforceable”].)

Defendants present detailed evidence explaining that creating and using a Grindr account requires accepting the terms of service, which include an arbitration provision.  Grindr is a mobile software application.  (Miranda Decl., ¶ 6.)  “Creat[ing] a Grindr account … is a prerequisite to using Grindr’s App and services.”  (Id., ¶ 25.)  Kelly Peterson Miranda, Grindr, LLC’s chief privacy officer (id., ¶ 1), testifies that when creating an account, the app presents the terms of service and a prompt stating, “I accept the Terms of Service.”  (id., ¶ 26).  The user has two options: “Cancel” or “Accept.”  (Ibid.)  “If the user clicks the ‘Cancel’ option in the pop-up window, the user may not proceed with account creation and will be unable to use the App or Grindr’s services.  If the user clicks the ‘Accept’ button, … the user will continue through the account creation process… .”  (Id., ¶ 27.)  “Only upon completion of the account creation process will the user be enabled access to use the App and Grindr’s services.”  (Id., ¶ 28.)  Thus, everyone who uses Grindr entered the clickwrap agreement.

Plaintiff argues defendants have not shown he agreed to the terms of service in effect in 2017.  The complaint alleges, “In or about 2017, Burrill subscribed to Grindr… .”  (Comp., ¶ 9.)  But in his declaration in support of the opposition, plaintiff testifies he “used the Grindr app in 2014” and “may have started using it earlier, as early as 2012 or 2013.”  (Burrill Decl., ¶ 2.) 

Defendants, however, present further evidence that users with existing accounts also had to express their consent to the 2017 terms of service via a clickwrap agreement.  Nicholas Penna, an “Engineering Manager at Grindr, LLC” testifies he is “familiar with the notification process when the Terms are updated” (Penna Decl., ¶ 1) and is “able to access records maintained by Grindr … regarding the Terms and notification process when the Terms are updated” (id., ¶ 3).  He states, “Starting on September 28, 2017, all existing users were presented with the full text of the Terms and thereafter affirmatively indicate their acceptance of those Terms by clicking an ‘Accept’ button… ” (id., ¶ 17).  Each time, “the user was prompted with a full-screen overlay that presented the entire text of the updated Terms in a scrollable format immediately upon opening the app.  Users were required to interact with a pop-up window requesting their assent to the updated Terms before they could access any other feature on the app.”  (Id., ¶ 18).  Defendants meet their burden of showing that, regardless of when plaintiff created his account, he—like all users—was notified of the terms of service containing the arbitration provision and had to press a button stating he agreed to them.   

Plaintiff contends defendants cannot meet their burden using evidence about all users in general.  He argues, “Without individualized evidence of Plaintiff’s actual ‘click,’ Defendant’s argument boils down to hypothesizing that, because all users were required to agree, Plaintiff must have checked it.  That is akin to an employer attempting to argue that a particular employee agreed to arbitration simply because it was their policy to require all employees to agree to it.”  (Opp., p. 6.) 

Plaintiff’s reliance on Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836 (Ruiz) is misplaced.  There, the court held an employer moving to compel arbitration did not meet its burden of showing that its employee electronically signed an arbitration agreement.  (Id. at p. 844.)  The employer’s supporting declaration stated the arbitration “agreement was part of an employee acknowledgment form that ‘is’ presented to all Moss Bros. employees …  , and each employee is required to log into the company’s HR system, using his or her ‘unique login ID and password,’ to review and sign the employee acknowledgment form.”  (Ibid.)  But the witness did not provide an adequate explanation of the security precautions preventing someone else from making the employee’s purported electronic signature.  (Ibid.) 

Like Ruiz, defendants rely on generalized evidence about a group rather than individualized evidence about the plaintiff’s actions.  But unlike Ruiz, this case involves a mobile app.  Using software is categorically different from the process of an employee affixing an electronic signature.  The Grindr app is automated.  No one can use it without creating an account and pressing the button stating they “Accept” the terms of service, including doing so again when Grindr updated the terms.  Plaintiff’s admitted use of Grindr shows it is more likely than not he pressed that button.

Plaintiff also argues there is no evidence he did not exercise the right to opt out.  The arbitration agreement includes an opt-out procedure.  (Miranda Decl., Ex. A, p. 22; Ex. B, pp. 38-39.)  Opting out required the user to send an email to a specified email address or mail to a specified address.  (Ibid.)  Plaintiff offers no reason to believe he opted out given that he does not recall seeing an arbitration agreement at all.  (Burrill Decl., ¶ 3.)  Because plaintiff refused to provide the information defendants need to identify his Grindr account (Kushner Decl., ¶¶ 4-9), defendants have no way to confirm whether he opted out.  Testifying he does not recall opting out (Burrill Decl., ¶ 3) is not sufficient for the court to conclude he opted out.  (See Evid. Code, § 412 [“If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust”].)

Plaintiff also argues that defendants’ right to change the terms of service without notice undermines the existence of an agreement.  Plaintiff relies on Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748 (Mendoza), where the defendant’s unilateral ability to change its arbitration policy “at any time” was one of several factors leading to the conclusion that “the parties had not entered into an express agreement to arbitrate” (id. at p. 788).  There, the only documents the plaintiff signed “did not mention the Arbitration Policy or otherwise incorporate it by reference.” (Ibid.)  In this case, by contrast, defendants present evidence that plaintiff, like all Grindr app users, pressed the “Accept” button to indicate his consent to terms of service that expressly state they include a binding contract to arbitrate disputes.  Mendoza is distinguishable.

IV. Unconscionability

            Plaintiff argues the agreement is unconscionable.  “The burden of proving unconscionability rests upon the party asserting it.”  (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126 (OTO).)  “Both procedural and substantive unconscionability must be shown for the defense to be established… .”  (Id. at p. 125.)

This court cannot decide whether the contract is unconscionable.  The parties delegated gateway issues of arbitrability, including this issue, to the arbitrator.  “Parties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement.  [Citation.]  They ‘can agree to arbitrate almost any dispute—even a dispute over whether the underlying dispute is subject to arbitration.’ ”  (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 241 (Tiri).)  “There are two prerequisites for a delegation clause to be effective.  First, the language of the clause must be clear and unmistakable.  [Citation.]  Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.”  (Id. at p. 242.)

A. Clear and Unmistakable Language

Both versions of the terms of service effective in 2017 include the same delegation clause: “You and We agree that the arbitrator, and not any federal, international, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable or a particular claim is subject to arbitration.”  (Miranda Decl., Ex. A, p. 20; Ex. B, pp. 37-38.)  

Tiri held the following provision was clear and unmistakable: “ ‘[T]he 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... .”  (Tiri, supra, 226 Cal.App.4th at p. 242.)  This provision is nearly identical to the delegation clause in the present case.  Several courts have held that similar provisions constitute clear and unmistakable delegation clauses.  (Mendoza, supra, 75 Cal.App.5th at p. 773 [collecting cases].)  The parties clearly and unmistakably agreed to delegate issues of enforceability, which includes unconscionability, to the arbitrator.  Plaintiff makes no argument to the contrary. 

B. Revocability of Delegation Clause

Plaintiff does not establish any general contract defense that makes the delegation clause revocable.  A “delegation clause must be viewed as a separate agreement nested within the arbitration agreement, and unless the clause is directly challenged, the arbitrator must resolve all of the disputed issues.”  (Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096, 1109 (Nielsen); accord Nickson v. Shemran, Inc. (2023) 90 Cal.App.5th 121, 133 [arbitrator must decide unconscionability where plaintiff “challenged the enforceability of the agreement as a whole, not the delegation clause in particular”].)  Plaintiff does not directly challenge the enforceability of the delegation clause.  Plaintiff’s opposition addresses the delegation clause only to argue it does not apply to whether the parties entered an agreement at all.  (Opp., p. 4.)  The court resolved that issue above. 

Plaintiff’s only other basis for opposing this motion is that the arbitration agreement—not the delegation clause, specifically—is unconscionable.  That is insufficient.  Assuming plaintiff directed this argument at the delegation clause, he does not meet his burden.  Plaintiff does not show anything about the agreement is substantively unconscionable as applied to the delegation clause. 

Plaintiff argues the agreement is substantively unconscionable for four reasons.  (Opp., pp. 12-15.)  First, plaintiff argues the agreement unfairly limits his remedies.  Even if so, that is irrelevant to whether it is fair to have the arbitrator determine gateway issues of arbitrability.  The remedies for plaintiff’s substantive claims are not involved in that analysis.  Second, plaintiff argues the agreement unfairly shortens the statutes of limitation for his claims.  That also goes to the merits of the claims, not the enforceability of the parties’ arbitration agreement. 

Third, plaintiff argues the agreement is substantively unconscionable because it does not specify who pays the arbitrator’s fees and instead only refers to the AAA rules.  This objection applies to arbitration of the gateway issues.  The parties must pay the arbitrator to resolve the threshold dispute.  Failing to specify who pays the fees in the arbitration agreement itself, however, can only be unconscionable if the incorporated rules are substantively unfair.  (Davis v. Kozak (2020) 53 Cal.App.5th 897, 909.)  If the “rules are not themselves substantively unfair, then the employer cannot be faulted for vaguely referring to such rules.”  (Ibid.) 

The terms of service provide for arbitration “administered by the American Arbitration Association (‘AAA’) in accordance with its Commercial Arbitration Terms and the AAA Supplementary Procedures for Consumer-Related Disputes.”  (Miranda Decl., Ex. A, p. 20; Ex. B, p. 37.)  Those rules are “easily accessible to the parties” because they “are available on the Internet.”  (Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 691.)  And they require the business to pay all fees except the initial $225 case management fee.  (Reply, p. 9 [linking to AAA website’s Consumer Arbitration Rules].)  That provision is not substantively unconscionable. 

Finally, plaintiff argues defendants’ unilateral right to amend the agreement makes it substantively unconscionable.  Like the fee issue, this objection applies to arbitration of gateway issues because defendants have the right to modify the delegation clause itself.  Defendants’ right to amend the agreement, however, is not substantively unconscionable as applied to the delegation cause.  “Under California law, … even a modification clause not providing for advance notice does not render an [arbitration] agreement illusory, because the agreement also contains an implied covenant of good faith and fair dealing.”  (Casas v. Carmax Auto Superstores California LLC (2014) 224 Cal.App.4th 1233, 1237.)  “ ‘[T]he implied covenant of good faith and fair dealing limits the [defendant’s] authority to unilaterally modify the arbitration agreement and saves that agreement from being illusory and thus unconscionable.’ ”  (Ibid.)  The same reasoning applies here.  Moreover, the agreement permits users to avoid being bound by future amendments: “If You do not agree to these amended terms, You may close Your account within thirty (30) days of the posting or notification and You will not be bound by the amended terms.”  (Miranda Decl., Ex. A, p. 22.)  Finally, though defendants have updated their terms of service several times since plaintiff’s claims arose (Penna Decl., ¶¶ 7-11), they expressly seek to enforce the versions of the terms in effect in 2017. 

The court finds nothing substantively unconscionable about the parties’ agreement to delegate gateway issues to the arbitrator.  The court therefore need not and does not address whether that agreement is procedurally unconscionable.  (See Crippen v. Central Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1167 [finding no procedural unconscionability and therefore not addressing substantive unconscionability].)

Disposition

            Defendants Grindr, LLC and Grindr Holdings, LLC’s motion to compel arbitration is granted.  The court hereby orders plaintiff Jeffrey Burrill to arbitrate his disputes with defendants.  The arbitrator shall decide gateway issues of arbitrability.  The court hereby stays the entire action pending resolution of the arbitration proceeding.