Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a car accident.  Plaintiff Scott Smart got into an accident while riding in an Uber car driven by Defendant Chad Daniel Hernandez.  Plaintiff has sued both Hernandez and Uber Technologies, Inc. for a “motor vehicle” claim.     

Plaintiff registered for an Uber Rider account on May 15, 2015. (Yu Decl., ¶ 7, Exhibit A (Plaintiff’s Sign-Up Confirmation).) The Terms that were in effect on May 15, 2015, when Plaintiff registered for an account, were the Terms of Use from April 8, 2015. (Id. ¶ 7 Exhibit B) (April 8, 2015 Terms). The April 8, 2015 Terms contained an arbitration agreement.  

On November 14, 2016, Uber sent Plaintiff an email with the subject line “We’ve Updated Our Terms of Use” that provided notice of updates to the Rider App Terms & Conditions. (Id., ¶ 8, Exhibit C (Confirmation of Sent 2016 Email).) The email contained the Terms of Use from November 21, 2016, which also included an arbitration provision. (Id., ¶¶ 9-10, Exhibit D (2016 Email), Exhibit E (November 21, 2016 Terms).)  

Both the April 8, 2015 Terms and the November 21, 2016 Terms required arbitration of all disputes or claims arising from the Agreement, and provided that all questions, including the interpretation of the scope of the Terms, are solely within the discretion of the arbitrator. (Id. ¶¶ 7-10 Exs. B, E.)  

On March 22, 2021, May 11, 2022, May 22, 2022, June 27, 2022, July 15, 2022, February 25, 2023, March 12, 2023, and October 4, 2023,, Plaintiff was presented with an in-app blocking pop-up screen with the header “We’ve updated our terms.”  The in-app blocking pop-up screen precluded the use of the Uber app unless or until a user clicked the checkbox on the screen and clicked the large “Confirm” button at the bottom of the screen. (Id. ¶ 12) The in-app blocking pop-up screen expressly stated that: “By checking the box, I have reviewed and agree to the Terms of Use and acknowledge the Privacy Notice.” (Id. ¶ 11.)  

When a user 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 ordinary course of Uber’s business at the time of the events being recorded. (Id. ¶ 13.) This record is linked to the user’s unique identifier associated with the user’s email address and/or mobile telephone number used to access the Uber platform. (Id.)  

Plaintiff expressly consented to the January 18, 2021, April 4, 2022, January 17, 2023, and June 14, 2023 Terms on March 22, 2021, May 11, 2022, May 22, 2022, June 27, 2022, July 15, 2022, February 25, 2023, March 12, 2023, and October 4, 2023 updated terms, by clicking the checkbox and tapping “Confirm.” (Id. ¶14, Exhibit A.) All revised terms contain a clear and conspicuous Arbitration Agreement. (Yu Decl., ¶15, Exhibit G [January 18, 2021, April 4, 2022, January 17, 2023, and June 14, 2023 Terms].)  

The arbitration provision contained in Uber’s Terms of Use states:  

“(a) Agreement to Binding Arbitration Between You and Uber. [ ] 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.” (emphasis added). (Yu Decl., Exhibit G.) 

 

Further, the arbitration provision delegates to the arbitrator the authority to resolve any issues relating to the enforceability of the arbitration agreement including whether there is any defense to arbitration such as waiver, unconscionability, etc.  Specifically, the Terms state:  

“The parties agree that the arbitrator (‘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, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are applicable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a dispute, you and Uber agree that the arbitrator will decide that issue.” (YuDecl., Exhibit G.) 

This hearing is on Uber’s motion to compel arbitration based on the arbitration provision in its “Terms of Use”.  According to Uber, the court must compel arbitration pursuant to the Federal Arbitration Act (“FAA”) because a written arbitration agreement exists and the agreement encompasses the dispute at issue.  Further, Uber contends that any questions relating to the enforceability of the agreement has been delegated to the arbitrator, and the Court may not consider whether the agreement is unconscionable or whether Uber waived the agreement to arbitrate.   

LEGAL STANDARD 

The arbitration agreement at issue here provides that the “Federal Arbitration Act will govern its interpretation and enforcement and proceedings.”  (Ex. G to Yu Decl., Section 2, Rules and Governing Law.)  However, for purposes of this case, there is no meaningful difference between the FAA and the California Arbitration Act (“CAA”), except as discussed in the last section of this Order. 

Under both the FAA and the CAA, the court first must determine whether there was an agreement to arbitrate.  The moving party must recite verbatim, or provide a copy of, the alleged agreement.  A movant can bear this initial burden “by attaching a copy of the arbitration agreement purportedly bearing the opposing party’s signature.” At this step, a movant need not “follow the normal procedures of document authentication” and need only “allege the existence of an agreement and support the allegation as provided in rule [3.1330].”  If the movant bears its initial burden, the burden shifts to the party opposing arbitration to identify a factual dispute as to the agreement’s existence, including for example, disputing the authenticity of their signatures. (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755.) 

Once the Court concludes that an agreement exists, it would normally then resolve whether the agreement is enforceable, including whether it is unconscionable or whether the moving party has waived the agreement to arbitrate.  However, where the parties expressly delegate these issues to the arbitrator (as is the case here), the Court must respect the parties’ decision except when the delegation clause is itself revocable under state contract defenses such as fraud, duress, or unconscionability. (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892.)  An unconscionability challenge must be specifically directed at the delegation provision, not the entire arbitration agreement. (Id. at 895.) 

ANALYSIS 

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.)  Here, Uber has submitted various arbitration agreements, requiring arbitration of disputes between Plaintiff and Uber.  Accordingly, Uber has met its initial burden to show that an arbitration agreement exists.   

The burden then shifts to Plaintiff to disprove the existence of the agreement.  Here, Plaintiff does not contest the existence of the arbitration agreement.  There is no argument that there is a lack of mutual assent because the arbitration agreement is a “click wrap” agreement, made over the internet, without any face to face contact.  Instead, Plaintiff’s sole argument is that Uber waived the arbitration agreement by actively litigating this case, including requesting a trial by jury.  Uber argues, however, that any waiver must be decided by the arbitrator given the delegation provision in the arbitration agreement.  The Court agrees with Uber.   

Under both federal and state law, courts presume that the parties intend courts, not arbitrators, to decide disputes about arbitrability and enforceability.  (BG Group plc v. Republic of Argentina (2014) 572 U.S. 25, 34); see Gostev v. Skillz Platform, Inc. (2023) 88 Cal.App.5th 1035, 1048; Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891.)  The parties may agree to delegate authority to the arbitrator to decide these issues, but evidence that the parties intended such a delegation must be “clear and unmistakable” before a court will enforce a delegation provision. (Nelson, 77 Cal.App.5th at 654; see also Brennan v. Opus Bank (9th Cir. 2015) 796 F.3d 1125, 1129.) “‘The “clear and unmistakable” test reflects a “heightened standard of proof” that reverses the typical presumption in favor of the arbitration of disputes.’” (Sandoval-Ryan v. Oleander Holdings LLC (2020) 58 Cal.App.5th 217, 223.)    

Here, the delegation of authority to the arbitrator to decide issues of arbitrability and enforceability could not have been clearer.  The parties expressly agreed that the arbitrator and not any court “shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable.”  Accordingly, absent any claim that the delegation clause is itself unenforceable (which Plaintiff does not argue), the Court must enforce the parties’ agreement.  The Court, therefore, declines to consider any arguments about the arbitrability of the disputes (including whether Uber waived the right to arbitration).   

The Court turns now to the question of whether the action should be stayed or arbitration denied because Plaintiff’s claims against the Uber driver are not arbitrable.  On this question, the CAA and FAA differ.   

Section 1281.2 of the CAA vests discretion in trial courts to “stay or deny arbitration” where at least one of three statutory exceptions applies. (Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 783; § 1281.2, subds. (a)-(c).)  One of those exceptions provides that the court may deny arbitration under subdivision (c) of section 1281.2, where there is a “pending court action . . . with a third party” that creates “a possibility of conflicting rulings on a common issue of law or fact.” (§ 1281.2, subd. (c); see Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) 

For purposes of the third party litigation exception, a “third party” means a party that is not bound by the arbitration agreement. (RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1519.) Section 1281.2, subdivision (c), “addresses the peculiar situation that arises when a controversy also affects claims by or against other parties not bound by the arbitration agreement.” (Cronus Investments v. Concierge Services (2005) 35 Cal.4th 376, 393.)  In this case, the third party is Hernandez, the Uber driver. 

Uber argues that section 1281.2, subdivision (c) is inapplicable because the arbitration provision expressly provide that the FAA “governs its interpretation and enforcement”.  The Court agrees with Uber.   

“[T]he parties may limit the trial court's authority to stay or deny arbitration under the CAA by adopting the more restrictive procedural provisions of the FAA.”  (Valencia, 185 Cal.App.4th at 157.) Unlike the CAA, the FAA “does not permit a trial court to stay or deny arbitration in those circumstances. Rather, the FAA requires the arbitration of all claims within the scope of an arbitration provision even if the action includes nonarbitrable claims by or against third parties.” (Id. at 157; accord, Mastick v. TD Ameritrade, Inc., 209 Cal.App.4th at 1263.) 

"[T]he FAA's procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) do not apply unless the contract contains a choice-of-law clause expressly incorporating them." (Valencia, 185 Cal.App.4th at p. 174.) “The question of whether the Agreement incorporated the FAA's procedural provisions, thereby eliminating the trial court's authority under section 1281.2[, subdivision ](c), ‘is a question of law involving interpretation of statutes and the contract (with no extrinsic evidence).’'" (Id. at 161-162.) 

Here, the arbitration agreements state that the FAA governs the “interpretation and enforcement” of the arbitration provisions.  Courts have construed similar provisions as an agreement to arbitrate pursuant to the FAA’s procedural provisions. (See Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 342-343, 346 (FAA governed motion to compel instead of CAA where agreement stated its “enforcement” was ‘governed by the [FAA]’].)  Therefore, the procedural provisions of the CAA, including section 1281.2, subdivision (c), do not apply in this case and are not a basis for denying the motion to compel arbitration of the arbitrable claims. 

CONCLUSION 

For the foregoing reasons, the Court GRANTS Uber’s motion to compel arbitration and stays the action pending completion of the arbitration.   

 

IT IS SO ORDERED. 

DATED: April 29, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court