Judge: Mark A. Young, Case: 23SMCV01529, Date: 2023-12-01 Tentative Ruling
Case Number: 23SMCV01529 Hearing Date: December 1, 2023 Dept: M
CASE NAME: Reymond, v. Bird
Rides Inc.
CASE NO.: 23SMCV01529
MOTION: Petition/Motion
to Compel Arbitration
HEARING DATE: 12/1/2023
Legal
Standard
Under California and federal law,
public policy favors arbitration as an efficient and less expensive means of
resolving private disputes. (Moncharsh
v. Heily & Blase (1992)
3 Cal.4th 1, 8-9; AT&T Mobility
LLC v. Concepcion (2011) 563 U.S. 333, 339.) Accordingly, whether an
agreement is governed by the California Arbitration Act (“CAA”) or the Federal
Arbitration Act (“FAA”), courts resolve doubts about an arbitration agreement’s
scope in favor of arbitration. (Moncharsh, supra, 3 Cal.4th at 9;
Comedy Club, Inc. v. Improv West
Assocs. (9th Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc.
(1997) 15 Cal.4th 951, 971-972 [“California law incorporates many of the basic
policy objectives contained in the Federal Arbitration Act, including a
presumption in favor of arbitrability [citation] and a requirement that an
arbitration agreement must be enforced on the basis of state law standards that
apply to contracts in general”].) “[U]nder both the FAA and California law,
‘arbitration agreements are valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any contract.’ ” (Higgins v. Superior Crout (2006) 140 Cal.App.4th 1238, 1247.)
“Code of
Civil Procedure section 1281.2 requires a trial court to grant a petition to
compel arbitration if the court determines that an agreement to arbitrate the
controversy exists.” (Avery v.
Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59,
quotations omitted.) Accordingly, “when presented with a petition to compel
arbitration, the court’s first task is to determine whether the parties have in
fact agreed to arbitrate the dispute.” (Ibid.) A petition to compel arbitration is in essence a suit in equity
to compel specific performance of a contract. (Id. at 71.) As with any other specific performance claim, “a
party seeking to enforce an arbitration agreement must show the agreement’s
terms are sufficiently definite to enable the court to know what it is to
enforce.” (Ibid. [internal citations omitted].) “Only
the valid and binding agreement of the parties, including all material terms
well-defined and clearly expressed, may be ordered specifically performed.” (Ibid.) An arbitration agreement “must be so interpreted as to give
effect to the mutual intention of the parties as it existed at the time of
contracting, so far as the same is ascertainable and lawful.” (Civ. Code, §
1636.) The language of the contract governs its interpretation if it is clear
and explicit. (Civ. Code, § 1368.) If uncertainty exists, “the language of a
contract should be interpreted most strongly against the party who caused the
uncertainty to exist.” (Civ. Code, § 1654.)
The party
seeking to compel arbitration bears the burden of proving the existence of a
valid arbitration agreement by the preponderance of the evidence. (Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal.4th 951, 972.) It would then be plaintiff’s burden, in opposing
the motion, to prove by a preponderance of the evidence any fact necessary to her
opposition. (See Ibid.) “In these
summary proceedings, the trial court sits as a trier of fact, weighing all the
affidavits, declarations, and other documentary evidence, as well as oral
testimony received at the court’s discretion, to reach a final determination.” (Ibid.)
Analysis
Defendant Bird Rides, Inc. (“Bird”)
moves to compel arbitration of Plaintiff Monique Reymond’s claims. Defendant asserts
that the instant claims are governed by Plaintiff’s agreement to arbitrate.
As with any contract, mutual assent
or consent is necessary for the formation of a valid arbitration agreement.
(Civ. Code, §§ 1550, 1565.) “Consent is not mutual, unless the parties all
agree upon the same thing in the same sense.” (Civ. Code, § 1580.) The moving
party bears the initial burden of showing the existence of an agreement to
arbitrate by a preponderance of the evidence. (Mitri v. Arnel Mgmt. Co. (2007) 157 Cal.App.4th 1164, 1169
[“Because the existence of the agreement is a statutory prerequisite to
granting the petition, the petitioner bears the burden of proving its existence
by a preponderance of the evidence.”].)
Bird operates an on-demand personal
electric scooter sharing network. (Grubb Decl. ¶ 3.) Users can rent a Bird
scooter only by creating an account through the Bird Mobile Application (“Bird
App”) on their smartphones. (Id., ¶ 4.) All users of the Bird App must review
and agree to the Bird Rental Agreement, Waiver of Liability and Release (“Bird
Rental Agreement”). (Id., ¶¶ 7–8 & Ex. A.) Attestation of the Bird Rental
Agreement is part of the mandatory sign-up process on the Bird App. (Id., ¶¶
12–15.) A user cannot rent a Bird scooter without first downloading the Bird
App and creating an account. (Id., ¶ 11.) The user sign-up process has been in
effect at all relevant times, including when Reymond signed up as a Bird user
on July 30, 2022. (Id., ¶¶ 9-10, Ex. B.)
To create an account, a user must
enter his or her e-mail address and click the “RIDE” button. (Id., ¶ 12 &
Ex. B.) The following message appears directly above the “RIDE” button: “By
clicking ‘RIDE,’ I confirm that I’m at least 18 years old, and I agree to
Bird’s Terms of Service and Privacy Policy.” (Id.) Both “Terms of Service” and
“Privacy Policy” are underlined clickable links that take the user to the
respective policy. (Id.) Upon verifying his or her e-mail address, the user
must then follow three steps to accept the Bird Rental Agreement. (Id., ¶ 14.)
The user must (1) scroll and read through the entirety of the Bird Rental
Agreement, which is displayed on the Bird App; (2) check two boxes confirming
the user’s acceptance of the terms and conditions set forth in the Bird Rental
Agreement, including certain highlighted sections; and (3) click the “I AGREE”
button at the end of the Bird Rental Agreement. (Id. & Ex. B.) It is
technologically impossible for a user to unlock and rent a Bird scooter without
first accepting and agreeing to the Bird Rental Agreement as depicted above, as
the scooter’s wheels remain disabled and the motor will not engage without
their completion as part of the first ride. (Id., ¶ 15.) This process is the
same when new versions of the Bird Rental Agreement are released. (Id.) It is
also impossible for someone to ride a scooter once a new version is released
without expressly agreeing to the Bird Rental Agreement in effect. (Id.)
Bird captures certain information
that is automatically generated by each user’s signup process, including when
the user signs up and when the user accepts the Bird Rental Agreement. (Id., ¶
16.) When a user signs up to use the Bird Platform and clicks “I AGREE” at the
end of the Rental Agreement, that data is contemporaneously transmitted to Bird
and kept by Bird in the ordinary course of business to, among other things,
confirm that the user has expressly agreed to Bird’s terms and conditions
before riding a Bird scooter. (Id., ¶¶ 17–18, 20.)
The agreement contains a binding
arbitration clause which applies to all claims arising out of the use of a Bird
scooter. (Id., ¶ 8 & Ex. A.) The beginning of the Bird Rental Agreement
includes the following notice, written in capital letters and boldface font,
specifically calling out the Arbitration Agreement:
THIS AGREEMENT CONTAINS
RELEASES, DISCLAIMERS, AND ASSUMPTION-OF-RISK PROVISIONS AND A BINDING
ARBITRATION AGREEMENT THAT LIMIT YOUR LEGAL RIGHTS AND REMEDIES. FOR MORE
DETAILS, PLEASE REFER TO SECTIONS 9 AND 15 BELOW.
(Id. at 1.)
Section 9 of the Bird Rental Agreement begins
with the following directive, written in capital letters: “PLEASE READ THIS
SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING
YOUR RIGHT TO FILE A LAWSUIT IN COURT.” (Id., § 9.) Section 9.2 then sets forth
the parties’ agreement to settle claims by binding arbitration:
“[A]ll claims arising out of or
relating to use and rental of a Vehicle, this Agreement, and the parties’
relationship with each other shall be finally settled by binding arbitration…
administered by JAMS, or alternatively a mutually agreed upon arbitrator or
arbitration service, under the applicable commercial arbitration rules for JAMS
or the mutually agreed upon arbitration service, excluding any rules or
procedures governing or permitting class actions… [t]he arbitrator, and not any
federal, state or local court or agency, shall have exclusive authority to
resolve all disputes arising out of or relating to the interpretation,
applicability, enforceability or formation of this Agreement, including . . .
whether a claim is subject to arbitration.”
Pursuant to the information
automatically generated by Reymond’s sign-up process, Reymond accepted and
agreed to the Bird Rental Agreement on July 30, 2022. (Id., ¶ 19.) Upon
Reymond’s agreement, the Bird App generated a record of her acceptance and
tagged the Bird Rental Agreement that she accepted to her user ID number. (Id.,
¶ 20.)
The basis of Reymond’s lawsuit
arises from allegations of her rental and operation of a Bird scooter on
September 2, 2022, in Los Angeles, California. (Compl., ¶¶ Prod. L1.) Bird
allegedly “breached [their] duty by recklessly and wantonly failing to provide
safe brakes on the Scooter rented to Plaintiff causing Plaintiff to fall and
suffer serious injuries.” (Id., ¶ GN-1.) The complaint alleges causes of action
for Product Liability Negligence; Strict Liability; and Breach of Implied
Warranty.
Defendant meets its burden demonstrating
the existence of an arbitration agreement between the parties that covers
Plaintiff’s claims. Plaintiff does not oppose the motion, and thus fails to
demonstrate any defense to the agreement. Defendant’s motion is therefore
GRANTED and the Court orders Plaintiff’s claims to arbitration. The entire
action is STAYED pending the completion of the arbitration. (CCP § 1281.4.)
The Court sets a status conference
re arbitration for December 5, 2024, at 8:30 a.m.