Judge James A. Mangione, Case Number: 37-2022-00027585-CU-BT-CTL, Date: 2024-05-31 Tentative Ruling

Judge: James A. Mangione, Case: 37-2022-00027585-CU-BT-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 31, 2024

05/31/2024 09:00:00 AM C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited Business Tort Motion Hearing (Civil) 37-2022-00027585-CU-BT-CTL GAVRIC VS UBER TECHNOLOGIES INC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Defendants Uber Technologies, Inc., Rasier, LLC, and Rasier-CA, LLC's ('Uber') Motion to Compel Arbitration is granted in part.

On September 30, 2020, Plaintiff created an Uber account and agreed to the July 15, 2020 Terms of Service in effect at the time ('2020 TOU'). In November 2020, Plaintiff retained counsel to pursue a claim for damages based on injuries he suffered from an accident on October 18, 2020. On January 18, 2021, while Plaintiff was pursuing his claim for the accident, Uber updated its Terms of Use ('2021 TOU'). Although Uber's records indicate Plaintiff agreed to the updated terms on March 13, 2021, Plaintiff's declaration states that he 'd[id] not recall' receiving a notice about the updated terms of service and 'certainly never had any understanding that I was retroactively waiving a constitutional right to a jury trial for a prior incident.' (ROA 54, � 6.) Because the claim was filed before Plaintiff agreed to the 2021 TOU and while Plaintiff was represented by counsel, the Court finds that the 2020 TOU governs Plaintiff's claims against Uber.

The 2020 TOU contains an arbitration provision, which states in relevant part: 'You and Uber agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Uber, and not in a court of law.' (ROA 27, Ex. B, pg. 2.) The 2020 TOU also includes a class action waiver and provision delegating to the arbitrator 'exclusive authority to resolve [1] any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement' and '[2] all threshold arbitrability issues'. The release at issue in the complaint ('Release') does not contain an arbitration provision or class action waiver but does contain an integration clause, which 'supersede[s] all prior agreements, whether written or oral, with respect to the subject matter hereof.' (Compl. Ex. A, � 12.) California courts have found that, where a subsequent agreement contains an integration clause 'explicitly limited to 'the subject matter hereof'' and is silent regarding arbitration/dispute resolution, 'the identified forum for dispute resolution remains arbitration based on the original [agreement].' (Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 Cal.App.4th 1, 15-16.) Therefore, the Release does not preclude arbitration of claims within the scope of the 2020 TOU arbitration agreement.

Here, Plaintiff's claims arise from his access to and use of Uber's services. Indeed, a core aspect of the complaint are the allegations that Uber is trying to silence customers who are injured using their services in order to preserve their public image and encourage continued use of the services. Although the claims are challenging the settlement agreement, they necessarily arise from the use of the services and the Calendar No.: Event ID: TENTATIVE RULINGS

3114088 17 CASE NUMBER: CASE TITLE: GAVRIC VS UBER TECHNOLOGIES INC [E-FILE] 37-2022-00027585-CU-BT-CTL requirement Uber has that its drivers maintain UIM/UM insurance. Therefore, the claims fall within the scope of the arbitration provision. Furthermore, the Court finds that the 2020 TOU is a valid agreement between the parties and is not unconscionable.

'[U]nder [McGill v. Citibank, N.A. (2017) 2 Cal.5th 945], an arbitration agreement that precludes a plaintiff from pursuing public injunctive relief in any forum is invalid and unenforceable as a matter of state law.' (Vaughn v. Tesla, Inc. (2023) 87 Cal.App.5th 208, 228, reh'g denied (Jan. 20, 2023), review denied (Apr. 12, 2023).) '[P]ublic injunctive relief under the Unfair Competition Law (UCL), the Consumer Legal Remedies Act (CLRA), and the false advertising law is relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public.' (Id. at 227 (alterations and quotation marks omitted).) In Vaughn, the court concluded that 'because the Arbitration Provision provides for resolution of all covered disputes in arbitration, but prohibits an arbitrator from granting non-individual relief, the provision does waive Plaintiffs' right to seek a public injunction 'in any forum.'' (87 Cal.App.5th at 228.) Under the 2020 TOU, '[t]he Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim.' (ROA 27, Ex. B at pg. 3.) Therefore, as in Vaughn, the arbitration agreement is invalid as to Plaintiff's UCL claim.

In sum, the Court grants Uber's motion to compel the first, fifth, sixth and seventh causes of action to arbitration and denies the motion to compel the second cause of action to arbitration.

Plaintiff's objections to Uber's request for judicial notice is sustained and judicial notice of Exhibits A through II are denied.

-- Defendants Progressive Commercial Casualty Corp. & Blue Hill Specialty Insurance Co.'s ('Progressive') Motion to Compel Arbitration is granted.

Progressive seeks to compel arbitration of Plaintiff's claims against it as a nonsignatory third-party beneficiary to Uber's 2021 TOU or under the doctrine of equitable estoppel. For the reasons discussed in the Court's ruling on Uber's concurrently heard motion to compel arbitration, Plaintiff's claims are governed by the 2020 TOU. Because the 2020 TOU does not contain the third-party beneficiary language Progressive relies upon from the 2021 TOU, it cannot invoke arbitration as a third-party beneficiary. Therefore, the Court turns to whether equitable estoppel applies.

Under equitable estoppel, 'a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are 'intimately founded in and intertwined' with the underlying contract obligations.' (DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1354 (some quotation marks omitted).) In determining whether to apply equitable estoppel, courts should consider whether claims against the nonsignatory defendant are 'based on the same facts and are inherently inseparable from arbitrable claims against signatory defendants' and 'the relationships of persons, wrongs and issues'. (Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1713 (quotation marks omitted).) Here, Plaintiff's claims against Progressive are based on Uber's conduct. Indeed, the complaint alleges that 'Uber, through insurance companies, purposefully delays settlements and withholds payments thereof unless and until Uber has successfully intimidated a claimant into a life-long commitment of silence.' (Compl. � 40 (emphasis added).) The claims against Progressive would not exist absent Plaintiff's use of Uber's services, and Plaintiff's allegations contend that Uber acts through, or at least in conjunction with, Progressive to obtain the purportedly illegal settlement agreements. Therefore, the claims against Progressive are 'inherently inseparable' from the claims against Uber, and Progressive can rely on equitable estoppel to compel arbitration of the claims against it.

Because the parties delegated threshold arbitrability issues to the arbitrator, it is the arbitrator who must Calendar No.: Event ID: TENTATIVE RULINGS

3114088 17 CASE NUMBER: CASE TITLE: GAVRIC VS UBER TECHNOLOGIES INC [E-FILE] 37-2022-00027585-CU-BT-CTL decide the enforceability of the class action waiver. Additionally, the Court will not consider Plaintiff's argument that CCP � 1670.8 precludes arbitration because it was raised for the first time in the supplemental briefing and falls outside the scope of the briefing authorized by the Court.

This case is stayed pending arbitration. A status conference is set for October 25, 2024 at 9:45 a.m. in this Department.

The minute order is the order of the Court.

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