Judge Matthew C. Braner, Case Number: 37-2023-00055403-CL-BT-CTL, Date: 2024-04-12 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00055403-CL-BT-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Limited Business Tort Motion Hearing (Civil) 37-2023-00055403-CL-BT-CTL CARDONA VS T MOBILE USA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant T-Mobile USA, Inc.'s petition to compel arbitration is GRANTED.

Under 'both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.' (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 861 (citation omitted).) 'The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.' (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842.) Here, Defendant seeks to enforce the arbitration provision contained in the 2019 and 2023 Terms and Conditions Plaintiff agreed to when he activated and continued using his account with Defendant. The 2019 terms require that 'any and all claims or disputes in any way related to or concerning the agreement, our privacy policy, our services, devices or products, including any billing disputes, will be resolved by binding arbitration or in small claims court.' (ROA #13, Sanchez Dec., Ex. C, p. 18.) The 2023 terms require that 'any and all claims or disputes, of any nature, including tory and statutory claims, in any way related to or concerning the agreement, our privacy notice, privacy or data security practices, our services, devices or products, including any billing disputes, will be resolved by individual binding arbitration or in small claims court.' (Sanchez Dec., Ex. D, p. 6.) Plaintiff does not dispute he agreed to the terms; instead, he argues his claims in the present suit do not fall within the scope of 2019 terms, and the 2023 terms are inapplicable because the claims arose in 2022, prior to Plaintiff agreeing to the updated terms. The court rejects these arguments. The 2019 arbitration term is broad enough to encompass Plaintiff's claims, which relate to, and are grounded in, Defendant's privacy policy, and its security practices with respect to its services and products. This sensible conclusion has also been reached by federal district courts in California when faced with the same broad language. (See, e.g., Mohammad v. T-Mobile USA, Inc. (E.D. Cal., Nov. 29, 2018), No.

2:18-cv-00405, 2018 WL 6249910, at *8 ['All of plaintiffs' claims arise from defendant T-Mobile's alleged misconduct in failing to safeguard plaintiffs' personal identifying information. These claims are thus disputes concerning T-Mobile's service covered by the arbitration agreement.'].) As to the 2023 terms, Plaintiff does not support his assertion with legal authority, and the authority cited by Defendant show the arbitration term has retroactive applicability. (See, e.g., Salgado v. Carrows Restaurants, Inc. (2019) 33 Cal.App.5th 356, 361-62 [relying on federal cases to conclude that a broad arbitration term lacking limitations on time will have retroactive application].) Plaintiff also argues that because he requests public injunctive relief in connection with his second cause Calendar No.: Event ID: TENTATIVE RULINGS

3084929 27 CASE NUMBER: CASE TITLE: CARDONA VS T MOBILE USA INC [IMAGED] 37-2023-00055403-CL-BT-CTL of action under the Unfair Competition Law, public policy renders the arbitration terms unenforceable.

(See McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 963 ['[T]he FAA does not require enforcement of a provision in a predispute arbitration agreement that, in violation of generally applicable California contract law, waives the right to seek in any forum public injunctive relief under the UCL, the CLRA, or the false advertising law.'].) The court is persuaded by this argument; Plaintiff's request for an injunction 'prohibiting Defendants [sic] from cloaking its notices of unauthorized account disclosures in its account statements rendering them unlikely or more difficult to be noticed' is primarily public, not personal.

Indeed, such an injunction would provide little benefit to Plaintiff, who has (according to his complaint) already suffered the harm occasioned by the purported misconduct. The 2019 and 2023 terms also include class action waivers, which have the effect of preventing Plaintiff from seeking public injunctive relief in any forum.

However, even if the arbitration terms are unenforceable with respect to the claim for public injunctive relief, they are not thereby rendered unenforceable as to the remaining claims, given the severability clause in the terms. (See, e.g., Sanchez Dec., Ex. C, pg. 21 ['If a court or arbitrator determines in an action between you and us that any part of this Class Action Waiver is unenforceable with respect to any claim, the arbitration agreement and Class Action Waiver will not apply to that claim, but they will still apply to any and all other claims that you or we may assert in that or any other action.'].) '[C]ase law establishes that a stay of proceedings as to any inarbitrable claims is appropriate until arbitration of any arbitrable claims is concluded.' (McGill v. Citibank, N.A., supra, 2 Cal.5th at p. 966.) 'Thus, arbitration of claims the parties have agreed to arbitrate may proceed pursuant to whatever procedures the arbitration agreement specifies, unaffected by any subsequent proceedings made necessary by invalidation of the waiver regarding the public injunctive relief claims the parties did not agree to arbitrate.' (Ibid.) Accordingly, Defendant's petition to compel arbitration is granted, except with respect to Plaintiff's claim for public injunctive relief under the Unfair Competition Law.

Plaintiff Octavio Cardona and Defendant T-Mobile USA, Inc. are ordered to arbitration. This litigation, including Plaintiff's request for public injunctive relief, is STAYED pending completion of arbitration.

The court will vacate the Civil Case Management Conference and OSC set for June 14, 2024, and will set a status conference for October 11, 2024, at 10:30 a.m. in this department.

The minute order is the order of the court.

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