Judge Barbara M. Scheper, Case Number: 24STCV20056, Date: 2024-12-09 Tentative Ruling

Judge: Barbara M. Scheper, Case: 24STCV20056, Date: 2024-12-09 Tentative Ruling

Case Number: 24STCV20056 Hearing Date: December 9, 2024 Dept: 30

Dept. 30

Calendar No.

Biesecker-Kesting vs. Charter Communications, Inc., et. al., Case No. 24STCV20056

Tentative Ruling re: Defendant’s Motion to Compel Arbitration

Charter Communications, Inc. (Defendant) moves for an order compelling Linda Rae Biesecker-Kesting (Plaintiff) to submit to binding arbitration and stay this action pending resolution of the arbitration. The motion is granted.

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 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 the revocation of the agreement.” (Code Civ. Proc. § 1281.2, subds. (a), (b).)

A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) Such enforcement may be sought by a party to the arbitration agreement. (Code Civ. Proc., § 1280, subd. (e)(1).)

A motion to compel arbitration requires the facts to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court’s discretion. (Code Civ. Proc., §1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413–414.) The motion must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (Cal. Rules of Court, rule 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218.)

Once the moving party alleges that an arbitration agreement exists, the burden shifts to the responding party to prove the falsity of the purported agreement, and no evidence or authentication is required to find the arbitration agreement exists. (See Condee, supra, 88 Cal.App.4th at p. 219.) However, if the existence of the agreement is challenged, “[movant] bears the burden of proving [the arbitration agreement’s] existence by a preponderance of the evidence.” (Rosenthal, supra, p. 413; see also Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1058–1060.)

Defendant argues that a valid arbitration agreement exists. A party moving to compel arbitration may meet its initial burden by providing a copy of the signed arbitration agreement. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165–166 (Gamboa).) The opposing party may produce evidence to challenge the agreement in response. (Ibid.) Then, the moving party must use admissible evidence to show a valid agreement. (Ibid.) Here, Defendant provides evidence of multiple arbitration agreements accepted by Plaintiff. (Flores Decl. ¶¶ 14, 29, Exs. 1, 7.) Plaintiff does not challenge the existence of these agreements or the authenticity of her signature. Thus, Defendant has met its burden.

Plaintiff objects that the agreement in question is unconscionable. Defendant argues that this is an issue for 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.” (Tiri v. Lucky Chances Inc. (2014) 226 Cal.App.4th 231, 241 (Tiri).) Parties may even delegate disputes over the enforceability of the agreement itself. (Ibid.) For such a delegation clause to be effective, its language must be clear and unmistakable, and it must not be revocable under state contract defenses such as fraud, duress, or unconscionability. (Id. at p. 242.) Here, the arbitration agreement between the parties includes a clause that vests exclusive authority in the arbitrator “to resolve any dispute relating to the interpretation, applicability, scope, or enforceability of these arbitration provisions.” (Flores Decl., Ex. 1.) This qualifies as clear and unmistakable language under Tiri.

Next, the Court must determine whether the delegation clause is revocable due to unconscionability. Unconscionability generally requires a finding of both procedural and substantive unconscionability. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1533.) They need not be present to the same degree: a sliding scale is used such that the greater the procedural or substantive unconscionability present, the less that is required of the other. (Gentry v. Superior Court (2007) 42 Cal.4th 443, 469 (Gentry).)

Procedural unconscionability “addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power.” (Haydon v. Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1287 (Haydon).) In assessing procedural unconscionability, courts must ask “whether circumstances of the contract’s formation created such oppression or surprise that closer scrutiny of its overall fairness is required.” (Ibid.) Oppression occurs where a contract’s formation lacks negotiation or meaningful choice. (Ibid.) Surprise may be found where the allegedly unconscionable provision is hidden in a boilerplate printed form. (Ibid.)

Generally, unconscionability analysis begins with whether the contract is one of adhesion. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113.) Such contracts are standardized and imposed and drafted by a party of superior bargaining strength; the subscribing party is left with the choice to adhere to the contract or reject it. (Ibid.) Here, the arbitration agreement is a non-negotiated adhesion contract between a heavily resourced communications company and an individual consumer. Such a contract is generally procedurally unconscionable. (Cabatit v. Sunnova Energy Corporation (2020) 60 Cal.App.5th 317, 323.) However, California courts have recently noted that such contracts are “indispensable facts of modern life that are generally enforced” and that a lack of ability to negotiate terms does not by itself demonstrate procedural unconscionability. (Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12, 37.) Thus, the present contract being one of adhesion makes a finding of procedural unconscionability more likely but not guaranteed. Plaintiff does not advance any other arguments concerning procedural unconscionability, however. Accordingly, the Court does not find the delegation clause procedurally unconscionable.

Even if the Court found a low degree of procedural unconscionability in the delegation clause, Plaintiff must still demonstrate a high degree of substantive unconscionability to render it unenforceable. (Gentry, supra, 42 Cal.4th at p. 469.) Substantive unconscionability exists when a contract “imposes unduly harsh or one-sided results.” (Haydon, supra, 97 Cal.App.5th at p. 1289.) Nothing about the delegation provision produces unfair results. It merely tasks the arbitrator, rather than the Court, with deciding arbitrability. Accordingly, the Court does not find the delegation clause substantively unconscionable, either.

Defendant additionally requests that the present proceedings be stayed pending the outcome of arbitration. If a court orders arbitration of a controversy, the court shall stay the action or proceeding until arbitration is complete on motion by a party. (Code Civ. Proc., § 1281.4.) Here, the Court has ordered arbitration. Accordingly, the proceedings are stayed pending the outcome of that arbitration.