Judge: Ashfaq G. Chowdhury, Case: 24NNCV04875, Date: 2025-03-27 Tentative Ruling

Case Number: 24NNCV04875    Hearing Date: March 27, 2025    Dept: E

Hearing Date: 03/27/2025-8:30 a.m.
Case No: 24NNCV04875
Trial Date: UNSET
Case Name: BOBBIE JEAN BROWN, an individual; v. UBER TECHNOLOGIES, INC., a Delaware Corporation; RAISER, LLC., a Delaware Corporation; RAISER-CA, LLC., a Delaware Corporation; MAHMOUD HAMISA, an Individual; and DOES 1-50, inclusive

TENTATIVE RULING ON MOTION TO COMPEL ARBITRATION

PROCEDURAL

Moving Party: Defendants, Uber Technologies, Inc.; Rasier-CA, LLC; and Rasier, LLC

Joining Party: Defendant, Mahmoud Hamisa

Responding Party: Plaintiff, Bobbie Jean Brown

Moving Papers: Notice/Motion; Chenshan Yu Declaration; Christy M. Kostich Declaration; Proposed Order;

Moving Papers: Joinder by Mahmoud Hamisa [filed 1/22/2025]

Opposing Papers: Opposition

Reply Papers: Reply

[For purposes of this motion, if the Court refers to “Defendants” or “Movants”, it is referring to Uber Technologies, Inc.; Rasier-CA, LLC; and Rasier, LLC. If the Court is referring to Defendant, Mahmoud Hamisa, it will refer to Hamisa as either “Hamisa” or “Joining Defendant.”]

Additional Papers
Joinder filed by Mahmoud Hamisa on 2/20/2025

Opposition to Joinder filed 3/6/2025 [hereinafter referred to as “2nd. Oppo.”]

Reply to Opposition to Joinder filed 3/7/2025

RELIEF REQUESTED

“Defendants UBER TECHNOLOGIES, INC., RASIER-CA, LLC and RASIER, LLC (collectively, “Defendants” or “Uber”) will and hereby do move this Court for an Order compelling Plaintiff BOBBIE JEAN BROWN (“Plaintiff”) to arbitrate her claims against Defendants and to dismiss or stay this action pending completion of arbitration (“Motion”).

 

Defendants make this Motion pursuant to 9 U.S.C., sections 1 et seq., on the grounds Plaintiff is bound by a written agreement to arbitrate the subject matter of the First Amended Complaint against Defendants. In addition, while arbitration of Plaintiff’s claims against Defendants is pending, the filed action should be stayed. (9. U.S.C., § 3.). This Motion is based on this Notice of Motion, the attached Memorandum of Points and Authorities, Declarations of Christy Kostich and Crenshan Yu filed concurrently herewith, all exhibits, all of the pleadings, files, and records in this proceeding, all other matters of which the Court may take judicial notice, and any argument or evidence that may be presented to or considered by the Court prior to its ruling.”

 

(Mot. p. 1-2.)

 

BACKGROUND

Plaintiff, Bobbie Jean Brown, filed the initial Complaint on 10/7/2024.  

 

Plaintiff filed the First Amended Complaint (FAC) on 10/08/2024 against Defendants – (1) Uber Technologies, Inc., a Delaware Corporation; (2) Rasier, LLC., a Delaware Corporation; (3) Rasier-CA, LLC., a Delaware Corporation; (4) Mahmoud Hamisa, an individual; and (5) Does 1-50.

 

Plaintiff’s FAC alleges that on 5/2/2023 Plaintiff was an Uber passenger in Defendant Hamisa’s vehicle, and Hamisa made an illegal turn that resulted in the vehicle colliding with an upcoming vehicle. (See Compl. ¶ 18.)

 

Plaintiff’s Complaint alleges one cause of action for negligence against all Defendants.

 

ANALYSIS
Code of Civil Procedure § 1281.2, governing orders to arbitrate controversies, provides in pertinent part:

 

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

 

(a) The right to compel arbitration has been waived by the petitioner; or

(b) Grounds exist for rescission of the agreement.

 

(CCP § 1281.2(a)-(b).)

 

The party seeking arbitration bears the initial burden of demonstrating the existence of an arbitration agreement. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) In ruling on a motion to compel arbitration, the Court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541; Victoria v. Superior Court (1985) 40 Cal. 3d 734, 835.) Once the Court concludes an arbitration agreement exists, it must then consider whether the agreement covers the claims at issue. (Omar v. Ralphs Grocery (2004) 118 Cal.App.4th 966, 960.) Even when the FAA applies, “interpretation of the arbitration agreement is governed by state law principles.” (Hotels Nevada, LLC v. Bridge Banc, LLC (2005) 130 Cal.App.4th 1431, 1435.)

 

Existence of Agreement – Parties - Uber Technologies, Inc.; Rasier-CA, LLC; and Rasier, LLC

As to Defendants, Uber Technologies, Inc.; Rasier-CA, LLC; and Rasier, LLC, Plaintiff does not oppose the existence of the arbitration agreement between them. Therefore, based on the declaration of  Chenshan Yu (Data Scientist employed with Uber Technologies, Inc.), the Exhibits submitted with the Yu Declaration, and based on the fact that Plaintiff did not oppose the existence of the arbitration agreement between Defendants and Plaintiff, Defendants thus demonstrated the existence of the arbitration agreement between Plaintiff and Defendants.

 

Existence of Agreement – Parties – Mahmoud Hamisa
Joining Defendant, Hamisa, joins Defendants’ motion to compel arbitration.

 

Hamisa acknowledges he was not a signatory to the arbitration agreement between Defendants and Plaintiff. However, Hamisa argues that the arbitration agreement can be applicable to him under the theories of agency and equitable estoppel.

 

As stated in Jensen v. U-Haul Co. of California:

 

[A]s a general rule, “[t]he right to arbitration depends on a contract, and a party can be compelled to submit a dispute to arbitration only if the party has agreed in writing to do so.” (Matthau v. Superior Court (2007) 151 Cal.App.4th 593, 598, 60 Cal.Rptr.3d 93 (Matthau).) “Even the strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement or who have not authorized anyone to act for them in executing such an agreement.” (County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 245, 54 Cal.Rptr.2d 628 (Contra Costa).)

 

Nevertheless, there are circumstances under which persons who have not signed an agreement to arbitrate are bound to do so. One treatise has stated that there are “six theories by which a nonsignatory may be bound to arbitrate: ‘(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.’ ” (Suh, supra, 181 Cal.App.4th at p. 1513, 105 Cal.Rptr.3d 585 [quoting 2 Oehmke, Commercial Arbitration (3d ed. 2006 update) § 41.57 at pp. 41-195]; see 1 Oehmke, Commercial Arbitration (3d ed. Aug. 2017 update) § 8.1 [similar].) 

 

(Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 300-301.)

 

Hamisa cites to Thomas v. Westlake (2012) 204 Cal.App.4th 605, 614 to support his theory of agency, and Hamisa cites to Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 785-788 to support his theory of equitable estoppel.

 

Under Thomas v. Westlake:

 

There are, however, “exceptions to the general rule that a nonsignatory ... cannot invoke an agreement to arbitrate, without being a party to the arbitration agreement.” (Westra, supra, 129 Cal.App.4th at p. 765, 28 Cal.Rptr.3d 752.) One such exception provides that when a plaintiff alleges a defendant acted as an agent of a party to an arbitration agreement, the defendant may enforce the agreement even though the defendant is not a party thereto.

 

(Thomas v. Westlake (2012) 204 Cal.App.4th 605, 614.)

 

Plaintiff’s FAC alleges as follows:

 

Plaintiff is informed and believes, and based upon such information and belief alleges that at all times relevant hereto, each Defendant, including DOES 1 through 50, was the owner, servant, agent, joint-venturer, employee or employer of each of its co-Defendants, and in doing the acts hereinafter mentioned, each Defendant was acting within the scope of its authority and with the permission and consent of its co-Defendants, and each of them, and that said acts of each Defendant was ratified by said Defendant's co-Defendants, and each of them and every Defendant, as aforesaid, when acting as a principal, was negligent in the selection and hiring of each and every other Defendant as an agent, employee and/or joint venturer.

 

(FAC. ¶ 12.)

 

Here, it appears that Hamisa can in fact join Defendants’ arbitration agreement, despite not being a signatory, based on the theory of agency, since Plaintiff alleges that Hamisa acted as an agent of a party to an arbitration agreement.

 

Plaintiff opposes Hamisa’s joinder on several grounds.

 

Plaintiff argues as follows:

 

Hamisa attempts to circumvent this by arguing that Plaintiff’s claims against him arise out of her use of the Uber platform, but this is a mischaracterization. Plaintiff's claims are based on Hamisa’s independent acts of negligence while operating a motor vehicle, not any contractual obligations stemming from the Uber agreement.

 

(2nd Oppo., p. 2)

 

Here, the Court fails to understand what Plaintiff is trying to argue. The entire premise of Hamisa’s arguments regarding agency and equitable estoppel is that Hamisa can join the arbitration despite the fact that Hamisa did not sign the arbitration agreement. Therefore, if Plaintiff wants to clarify their argument at the hearing, Plaintiff should plan to do so, otherwise the Court finds this argument unavailing.

 

Plaintiff also argues as follows:

 

Furthermore, Uber’s arbitration agreement explicitly limits arbitration to disputes between Uber and the rider, without any language extending enforcement rights to independent contractors such as Hamisa. Courts have consistently held that independent drivers working under platforms such as Uber do not have standing to compel arbitration absent express inclusion in the agreement. (See O’Hanlon v. Uber Techs., Inc. (3d Cir. 2022) 990 F.3d 757, 764.)

 

(2nd Oppo., p. 2.)

 

Plaintiff’s argument is unavailing.

 

First, O’Hanlon v. Uber Techs., Inc. (3d Cir. 2022) 990 F.3d 757, 764 did not hold that independent drivers working under platforms such as Uber do not have standing to compel arbitration absent express inclusion in the agreement.

 

Second, O’Hanlon v. Uber Techs., Inc. (3d Cir. 2022) 990 F.3d 757, 764 is entirely inapposite and not on point to the instant circumstances. In O’Hanlon, wheelchair users, who were non-signatories to Uber’s arbitration clause brought suit under the Americans with Disabilities Act for discrimination for not offering wheelchair accessible vehicle options. Uber argued that the wheelchair users did not have standing to sue. The portion of the case cited by Plaintiff dealt with the United States Court of Appeals discussing how it had no independent duty to review the District Court’s ruling on Plaintiffs’ standing. Here, the instant circumstances have nothing to do with the circumstances in O’Hanlon.

 

Plaintiff also argues that the agency exception does not apply because Uber has consistently maintained that its drivers are independent contractors, not employees or agents.

 

The Court fails to understand Plaintiff’s argument.

 

First, Plaintiff provides no evidence or support for its argument that “Uber has consistently maintained that its drivers are independent contractors, not employees or agents.”

 

Second, Plaintiff’s argument does not address Thomas v. Westlake and how Plaintiff alleged that all the Defendants were agents to one another.

 

Plaintiff also argues that “Courts have repeatedly rejected efforts by Uber drivers to claim agency status for purposes of arbitration enforcement. (See O’Hanlon v. Uber Techs., Inc. (3d Cir. 2022) 990 F.3d 757, 764; Gondal v. Uber Techs., Inc. (N.D. Cal. 2021) 2021 WL 1204153, at *4.).”

 

As the Court previously addressed, O’Hanlon is not on point.

 

As to Gondal, the Court cannot find the Gondal case that Plaintiff cites.

 

Plaintiff also argues that “Plaintiff’s claims of vicarious liability do not transform Hamisa into an agent for purposes of enforcing the arbitration clause.” (2nd Oppo. p. 3.) To support Plaintiff’s argument, Plaintiff cites to Thomas v. Westlake (2012) 204 Cal.App.4th 605, 614.

 

Here, the Court does not find Plaintiff’s argument availing. Thomas v. Westlake seems to directly support Hamisa’s argument in favor or Hamisa being able to join the arbitration agreement. Based on the Court’s reading of Thomas v. Westlake, the Court is unsure how Plaintiff is arguing that Thomas v. Westlake does not support compelling arbitration for Hamisa.

 

Overall, Hamisa has demonstrated his ability to join Defendants’ motion to compel arbitration based on the theory of agency. The Court will not address the equitable-estoppel theory because Hamisa successfully demonstrated that the agency exception was applicable, and Plaintiff did not successfully attack the agency exception.

 

Lastly, Plaintiff’s argument – that public policy favors keeping negligence claims in court, where plaintiffs have full discovery rights and access to a jury – is unavailing. To support Plaintiff’s argument, Plaintiff cites to Armendariz v. Found. Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 100. The Court is not clear how Plaintiff’s citation to Armendariz is on point in the instant scenario, when Hamisa has demonstrated a basis to join the arbitration agreement based on the agency exception in Thomas v. Westlake (2012) 204 Cal.App.4th 605, 614.

 

Scope
Once the Court concludes an arbitration agreement exists, it must then consider whether the agreement covers the claims at issue. (Omar v. Ralphs Grocery (2004) 118 Cal.App.4th 966, 960.)

 

Plaintiff argues that Plaintiff’s claims fall outside the scope of the arbitration agreement.

 

Plaintiff argues:

 

The incident giving rise to this lawsuit is a motor vehicle collision caused by Defendant Hamisa— an independent contractor who was using Uber’s platform. Personal injury claims stemming from the negligence of independent contractors are not the type of disputes contemplated by Uber’s arbitration agreement. To the extent there is any ambiguity regarding the scope of the arbitration clause, such ambiguity must be construed against Uber as the drafter (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 248).

 

(Oppo. p. 4.)

 

In relevant part, the arbitration agreement provides:

 

Except as expressly provided below in Section 2(b), you and Uber agree that any dispute, claim or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof, (ii) your access to or use of the Services at any time, (iii) incidents or accidents resulting in personal injury that you allege occurred in connection with your use of the Services, whether the dispute, claim or controversy occurred or accrued before or after the date you agreed to the Terms, or (iv) your relationship with Uber, will be settled by binding arbitration between you and Uber, and not in a court of law. This Agreement survives after your relationship with Uber ends.

 

(Yu Decl., Ex. D, Section 2.)

 

Here, the Court does not find Plaintiff’s argument availing as it fails to see how the claims fall outside the scope of the arbitration agreement.

 

Defense to Arbitration - Waiver

“The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability. [Citation.]” (Marenco v. DirectTV LLC (2015) 233 Cal.App.4th 1409, 1416.) “Code of Civil Procedure section 1281.2 provides that one ground for denying a petition to compel arbitration is that “[t]he right to compel arbitration has been waived by the petitioner.”” (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 374.)

 

Plaintiff opposes compelling arbitration based on the defense of waiver.

 

Plaintiff argues that Uber waived its right to compel arbitration because:

 

In this case, Uber waived its right to arbitration by filing answers to the Complaint, serving and responding to discovery, and objecting to Plaintiff’s CCP § 998 settlement offer. In addition, Uber objected on December 30, 2024, to Plaintiff’s Notice of Deposition of its Person Most Qualified (PMQ) and accompanying Request for Production of Documents (RFPs), which were scheduled for January 6, 2025. These objections were served after Uber had already responded to written discovery on December 26, 2024, further embedding itself in the litigation process.

 

(Oppo. p. 2-3.)

 

Plaintiff also argues that Uber’s actions have caused undue prejudice to Plaintiff by “creating an imbalance that cannot be ignored by this Court.” (Oppo., p. 3.)

 

Plaintiff cites to St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 and Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 376 to support Plaintiff’s argument that Defendants waived their ability to compel arbitration.

 

Plaintiff’s arguments on waiver are unavailing for several reasons.

 

First, St. Agnes Medical Center and Iskanian are two cases in which the Supreme Court of California did not find waiver.

 

Second, Defendants’ actions don’t demonstrate that they waived their ability to compel arbitration.

 

As explained in Iskanian v. CLS Transportation Los Angeles, LLC:

 

“California courts have found a waiver of the right to demand arbitration in a variety of contexts, ranging from situations in which the party seeking to compel arbitration has previously taken steps inconsistent with an intent to invoke arbitration [citations] to instances in which the petitioning party has unreasonably delayed in undertaking the procedure. [Citations.] The decisions likewise hold that the ‘bad faith’ or ‘willful misconduct’ of a party may constitute a waiver and thus justify a refusal to compel arbitration. [Citation.]” (Davis v. Blue Cross of Northern California (1979) 25 Cal.3d 418, 425–426, 158 Cal.Rptr. 828, 600 P.2d 1060.) The fact that the party petitioning for arbitration has participated in litigation, short of a determination on the merits, does not by itself constitute a waiver. (St. Agnes Medical Center, supra, 31 Cal.4th at p. 1203, 8 Cal.Rptr.3d 517, 82 P.3d 727.)

 

We have said the following factors are relevant to the waiver inquiry: “ ‘ “(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or prejudiced’ the opposing party.” ' ” (St. Agnes Medical Center, supra, 31 Cal.4th at p. 1196, 8 Cal.Rptr.3d 517, 82 P.3d 727.)

 

 

In light of the policy in favor of arbitration, “waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof.” (St. Agnes Medical Center, supra, 31 Cal.4th at p. 1195, 8 Cal.Rptr.3d 517, 82 P.3d 727.) “Generally, the determination of waiver is a question of fact, and the trial court's finding, if supported by sufficient evidence, is binding on the appellate court. [Citation.] ‘When, however, the facts are undisputed and only one inference may reasonably be drawn, the issue is one of law and the reviewing court is not bound by the trial court's ruling.’ ” (Id. at p. 1196, 8 Cal.Rptr.3d 517, 82 P.3d 727.)

 

(Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 374-75.)

 

Here, Plaintiff has not established waiver, and many of the factors relevant to the waiver inquiry do not lean in Plaintiff’s favor of establishing waiver.

 

First, Defendants’ actions are not inconsistent with the right to arbitrate. Defendants’ actions were reacting to Plaintiff’s actions. For example, Plaintiff propounded several different types of discovery onto Defendants, and Defendants objected to the discovery on the grounds that arbitration was the proper forum. Defendants’ actions here are not inconsistent with the right to arbitrate as they argued that arbitration was the proper forum.

 

Further, Defendants filing an Answer was not inconsistent with the right to arbitrate as they asserted the affirmative defense concerning Uber’s right to arbitrate.

 

Second, the litigation machinery had not been substantially invoked, and the parties were not well into preparation of the lawsuit before Uber notified the opposing party of an intent to arbitrate. Plaintiff’s FAC was filed on 10/8/2024, and Uber’s Answer (asserting the affirmative defense of arbitration) was filed on 12/6/2024. Additionally, Uber’s motion to compel arbitration was filed on 1/13/2025.

 

Third, Uber did not request arbitration close to the trial date or delay for a long period.

 

Fourth, Uber did not file a counterclaim without asking for a stay of proceedings.

 

Fifth, important intervening steps had not taken place. Uber did not take advantage of judicial discovery procedures; Uber objected to Plaintiff’s discovery on the basis that arbitration was the proper forum.

 

And lastly, Uber did not prejudice the Plaintiff, as this case has not even been set for trial.

Therefore, Plaintiff did not demonstrate that Defendants waived their ability to compel arbitration.

 

Defense to Arbitration – Unconscionability (Procedural and Substantive)

Unconscionability generally includes the absence of meaningful choice on the part of one of the parties together with contract terms that unreasonably favor the other party. (Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 82-83.) Unconscionability has both a “procedural” and a “substantive” element. (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.)  An agreement to arbitrate is unenforceable only if both procedural and substantive unconscionability is shown. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1533.) Plaintiff has the burden of proving both procedural and substantive unconscionability. (Crippen v. Central Valley RV Outlet. Inc. (2004) 124 Cal.App.4th 1159, 1165.)

Procedural Unconscionability

“The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability. [Citation.]” (Marenco v. DirectTV LLC (2015) 233 Cal.App.4th 1409, 1416.)

 

Plaintiff argues that Uber waived its right to compel arbitration because the agreement was procedurally unconscionable because it was buried in multiple layers of hyperlinks and did not require Plaintiff to actively acknowledge or review the specific terms before providing consent.

 

To support Plaintiff’s argument, Plaintiff cites to Nguyen v. Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1177 and Specht v. Netscape Communications Corp. (2d Cir. 2002) 306 F.3d 17, 30.

 

Plaintiff’s arguments are unavailing for several reasons.

 

First, based on the factual record that will be explained below, Plaintiff did in fact have to actively provide consent to the arbitration agreement. Second, the cases that Plaintiff cited are not on point in the instant scenario.

 

As to the factual record provided by Yu in support of Defendants’ motion to compel arbitration, there is no procedural unconscionability here.

 

In relevant part of the Yu Declaration regarding Plaintiff’s consent to the arbitration agreement:

 

9. On January 6, 2025, I personally searched Uber’s database for Plaintiff’s account by entering their unique identifying number and/or email address. In reviewing their account, I determined that, on February 2, 2021, February 8, 2022, May 16, 2022, January 14, 2023, January 21, 2023 and January 22, 2023, Plaintiff was presented with an in-app blocking pop-up screen with the header “We’ve updated our terms.” It also stated in large type, “We encourage you to read our Updated Terms in full” and under that message had the phrases “Terms of Use” and “Privacy Notice,” which were displayed underlined and in bright blue text, all of which set the text apart from other text on the screen and indicated a hyperlink. When a user clicked either hyperlink, the Terms of Use or Privacy Notice, that were published on Uber’s website respectively, were displayed. The hyperlink was linked to the following address: https://www.uber.com/legal/document/?name=general-terms-of-use. The in-app blocking pop-up screen expressly stated that: “By checking the box, I have reviewed and agreed to the Terms of Use and acknowledge the Privacy Notice.” It also states that: “I am at least 18 years of age.”

 

10. Based upon my personal knowledge arising from my position and job duties at Uber, the in-app blocking pop-up screen precluded the use of the Uber app unless and until a user clicked the checkbox on the screen and clicked the large “Confirm” button at the bottom of the screen. Attached hereto as Exhibit C is a true and correct copy of a representation of the in-app blocking pop-up screen.

 

11. Based upon my personal knowledge arising from my position and job duties at Uber, when a user presented with the in-app blocking pop-up screen, described in the prior paragraph of this declaration, clicks the checkbox and clicks the “Confirm” button a record of this consent is simultaneously and electronically captured, recorded, maintained, safeguarded, and stored in the regular course of Uber’s business at the time of the events being recorded. This record is linked to the user’s unique identifier associated with the user’s account, which is located through the email address and/or mobile telephone number used to access the Uber platform.

 

12. I personally searched Uber’s database for Plaintiff’s account by entering their unique identifying number and/or email address1 . I located Uber’s record of Plaintiff’s consent to the January 18, 2021, December 16, 2021 , April 4, 2022, August 16, 2022, and January 17, 2023 Terms. I am personally familiar with the contents of the January 18, 2021, December 16, 2021 , April 4, 2022, August 16, 2022, and January 17, 2023 Terms. Attached hereto as Exhibit A is a true and correct copy of Uber’s record of Plaintiff’s consent to the January 18, 2021, December 16, 2021 , April 4, 2022, August 16, 2022, and January 17, 2023 Terms. That record confirms that, on February 2, 2021, February 8, 2022, May 16, 2022, January 14, 2023, January 21, 2023 and January 22, 2023, Plaintiff accessed their Uber app, was presented with the in-app blocking popup screen regarding the January 18, 2021, December 16, 2021 , April 4, 2022, August 16, 2022, and January 17, 2023 Terms described above, and clicked the checkbox and tapped the “Confirm” button.

 

13. Based upon my personal knowledge arising from my position and job duties at Uber, Uber maintains and stores all prior versions of Terms that have been in effect at various points of time in the past and which were published on its website. On January 6, 2025, I accessed Uber’s business records to obtain the Terms which were in effect for United States users on or about January 18, 2021, December 16, 2021 , April 4, 2022, August 16, 2022, and January 17, 2023. I am personally familiar with the contents of the January 18, 2021, December 16, 2021 , April 4, 2022, August 16, 2022, and January 17, 2023 Terms. Attached hereto as Exhibit D is a true and correct copy of the January 18, 2021, December 16, 2021 , April 4, 2022, August 16, 2022, and January 17, 2023 Terms. The January 18, 2021, December 16, 2021 , April 4, 2022, August 16, 2022, and January 17, 2023 Terms contain an Arbitration Agreement.

 

(Yu Decl. ¶¶ 9-13.)

 

Based on the Yu declaration, Plaintiff would have had to actively acknowledge consent by clicking the checkbox and tapping the “Confirm” button. In Opposition, Plaintiff does not submit a declaration by Plaintiff indicating otherwise.

 

Additionally, Plaintiff’s citation to Nguyen v. Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1177 is not on point. In Nguyen, the plaintiff did not have to check a box or assent to the terms of use. In Nguyen, the terms of use were displayed via a hyperlink located at the bottom of the screen on the website, but Nguyen was not prompted to assent to the Terms of Use.

 

Likewise, Plaintiff’s citation to Specht v. Netscape Communications Corp. (2d Cir. 2002) 306 F.3d 17, 30 is not on point. In Specht, the plaintiffs were not required to express unambiguous assent nor even view the license terms.

 

Here, Plaintiff had to click a checkbox and click confirm, further, Plaintiff could not use the app unless the user clicked the checkbox to confirm the terms of use.

 

“A ‘clickwrap’ agreement is one in which an internet user accepts a website’s terms of use by clicking an ‘I agree’ or ‘I accept’ button, with a link to the agreement readily available.” (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 463.) “Courts have generally enforced agreements to arbitrate formed via ‘clickwrap[.]’” (Weeks v. Interactive Life Forms, LLC (2024) 100 Cal.App.5th 1077, 1084.)

 

“Clickwrap agreements have been held to manifest assent, even on consumers who did not read them, because “the website [has] put[ ] the consumer on constructive notice of the contractual terms.”” (Weeks v. Interactive Life Forms, LLC (2024) 100 Cal.App.5th 1077, 1085.)

 

Therefore, Plaintiff has not demonstrated procedural unconscionability.

 

Substantive Unconscionability

An agreement to arbitrate is unenforceable only if both procedural and substantive unconscionability is shown. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1533.)

 

As a preliminary matter, Plaintiff’s unconscionability argument fails because Plaintiff did not demonstrate procedural unconscionability.

 

Additionally, Plaintiff did not demonstrate substantive unconscionability.

 

Plaintiff argues:

 

In addition to procedural flaws, the arbitration agreement is substantively unconscionable. Its overly broad scope purports to cover all claims “arising out of or related to” Uber’s services, including personal injury claims unrelated to the core purpose of Uber’s platform. Furthermore, the delegation clause improperly assigns threshold determinations regarding arbitrability to the arbitrator, further disadvantaging Plaintiff and stripping the Court of its authority to resolve foundational issues of enforceability (Rent-A-Center, W., Inc. v. Jackson (2010) 561 U.S. 63, 70).

 

(Oppo. p. 4. )

 

Here, the Court does not understand Plaintiff’s argument on substantive unconscionability. Not only does the Court not understand Plaintiff’s argument, but the Court does not understand how Plaintiff is arguing that the case it cited supports Plaintiff’s argument. In Rent-A-Center, the Supreme Court of the United States held that the provision of the employment agreement which delegated to an arbitrator exclusive authority to resolve any dispute relating to the agreement’s enforceability was a valid delegation under the FAA. This seems to undercut Plaintiff’s own argument.

 

Therefore, Plaintiff did not demonstrate substantive unconscionability.

 

TENTATIVE RULING
Defendants’ motion to compel arbitration and stay this action pending completion of arbitration is GRANTED. Likewise, Joining Defendant, Hamisa’s, joinder to compel arbitration is GRANTED.

 

Defendants demonstrated the existence and scope of the arbitration agreement between them and the Plaintiff. Likewise, Joining Defendant demonstrated that the agency exception applied so that Hamisa could also compel arbitration. Further, Plaintiff’s arguments on waiver and unconscionability were unavailing.