Judge: Michael E. Whitaker, Case: 24SMCV03424, Date: 2024-10-31 Tentative Ruling

Case Number: 24SMCV03424    Hearing Date: October 31, 2024    Dept: 207

TENTATIVE RULING

MOTION

On July 16, 2024, Plaintiff Nick Nasser Pourmand (“Plaintiff”) filed the Complaint alleging two causes of action for (1) fraud by false promise; and (2) violations of California’s Fair Debt Collection Practices Act against Defendant Verizon Wireless Service, LLC (“Defendant”) stemming from Defendant’s alleged false promise to provide Plaintiff free internet service with Plaintiff’s purchase of a telephone service subscription and alleged attempt to collect on false collection bills.

Defendant now moves to compel arbitration and stay the instant proceedings based on the arbitration provision in the Verizon Wireless Customer Agreement.  Defendant’s motion is unopposed.

ANALYSIS

1.     MOTION TO COMPEL ARBITRATION – LEGAL STANDARDS

            “[T]he advantages of arbitration include a presumptively less costly, more expeditious manner of resolving disputes.  It follows a party to a valid arbitration agreement has a contractual right to have its dispute with another party to the contract resolved quickly and inexpensively.”  (Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 99–100 [cleaned up].)  Thus, “on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that 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.”  (Code Civ. Proc., § 1281.2; see also

EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1320 [the language in section 1281.2 compelling arbitration is mandatory].) The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.  (Code Civ. Proc., § 1281.2, subds. (a)-(c).)   

            “On a petition to compel arbitration, the trial court must first determine whether an agreement to arbitrate the controversy exists.  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.  The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the respondent's signature.”  (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543-544 [cleaned up].)  The party seeking to compel arbitration must also “plead and prove a prior demand for arbitration and a refusal to arbitrate under the agreement.”  (Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640-641.) 

            And while the moving party on a motion to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, [a] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.  The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.”  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842 [cleaned up]; see also Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [“The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability”].) 

2.     ENFORCEABLE ARBITRATION AGREEMENT

In support of the motion, Defendant provides the Declaration of Joseph Ninete, which provides:

5. In reviewing the Complaint, Verizon Wireless business records demonstrate that on December 16, 2023, Plaintiff signed and received a store customer receipt ("SCR") in which he acknowledged having read and agreed to Verizon Wireless's Customer Agreement (the "Customer Agreement"). Attached as Exhibit 1 is a tn1e and correct copy of SCR.

6. All Verizon Wireless customers are subject to a Customer Agreement. Attached as Exhibit 2 is a true and correct copy of the Customer Agreement effective 6 at the time Plaintiff executed the SCR.

(Ninete Decl. ¶¶ 5-6.)  Exhibit 1 provides:

Agreements

(view full agreement at vzw.com/myverizon)

Customer Agreement

I have read and agree to the Verizon Wireless Customer Agreement and Verizon Privacy Policy, including settlement of dispute by arbitration instead of jury trial, as well as the terms of my plan and any option services I have agreed to purchase.

Signature

I have read and agree to the Verizon Customer Agreement including settlement of dispute by arbitration instead of jury trial, as well as the terms of the plan, optional services I have agreed to purchase and the Verizon Privacy Policy.  California customers view our California Privacy Notice.

[signature]

(Ex. 1 to Ninete Decl.)   The Customer Agreement attached as Exhibit 2 provides:

HOW DO I RESOLVE DISPUTES WITH VERIZON?

WE HOPE TO MAKE YOU A HAPPY CUSTOMER, BUT IF THERE’S AN ISSUE THAT NEEDS TO BE RESOLVED, THIS SECTION OUTLINES WHAT’S EXPECTED OF BOTH OF US.

YOU AND VERIZON BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT AS DISCUSSED BELOW. YOU UNDERSTAND THAT BY THIS AGREEMENT YOU ARE GIVING UP THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A JURY. WHILE THE PROCEDURES IN ARBITRATION MAY BE DIFFERENT, AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD, SUBJECT TO THE LIMITS ON ARBITRATOR AUTHORITY SET FORTH BELOW. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS’ FEES, AN ARBITRATOR CAN AWARD THEM TOO. THE SAME DEFENSES ARE ALSO AVAILABLE TO BOTH PARTIES AS WOULD BE AVAILABLE IN COURT INCLUDING ANY APPLICABLE STATUTE OF LIMITATIONS. WE ALSO BOTH AGREE THAT:

(1) THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT CASES OR AS SPECIFICALLY NOTED BELOW, ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT, WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) AS EXPLAINED BELOW IN PARAGRAPH 2. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY DISPUTE REGARDING THE VALIDITY, ENFORCEABILITY, OR SCOPE OF ANY PORTION OF THIS AGREEMENT (INCLUDING THE AGREEMENT TO ARBITRATE), ANY EQUIPMENT, PRODUCTS AND SERVICES YOU RECEIVE FROM US, ANY ADVERTISING FOR ANY SUCH PRODUCTS OR SERVICES, OUR EFFORTS TO COLLECT AMOUNTS YOU MAY OWE US FOR SUCH PRODUCTS OR SERVICES, OR ALLEGED PERSONAL INJURY OR INVASION OF PRIVACY RELATING TO SUCH PRODUCTS OR SERVICES AND INCLUDES ANY DISPUTES YOU HAVE WITH OUR EMPLOYEES OR AGENTS. YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU. THIS AGREEMENT TO ARBITRATE CONTINUES TO APPLY EVEN AFTER YOU HAVE STOPPED RECEIVING SERVICE FROM US.

(2) UNLESS YOU AND VERIZON AGREE OTHERWISE, THE ARBITRATION WILL TAKE PLACE IN THE COUNTY OF YOUR BILLING ADDRESS. AND THE AAA’S CONSUMER ARBITRATION RULES WILL APPLY. IF THE AAA REFUSES TO ENFORCE ANY PART OF THE ARBITRATION PROVISION, YOU AND VERIZON WILL SELECT ANOTHER ARBITRATOR. IF THERE IS NO AGREEMENT, A COURT IN THE COUNTY OF YOUR BILLING ADDRESS WILL SELECT AN ARBITRATOR TO DECIDE THE DISPUTE. UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, AN INDIVIDUAL ARBITRATOR APPOINTED TO DETERMINE THE MERITS OF THE DISPUTE SHALL HAVE EXCLUSIVE AUTHORITY TO ARBITRATE, INCLUDING BUT NOT LIMITED TO ANY DISPUTE REGARDING THE VALIDITY, ENFORCEABILITY OR SCOPE OF ANY PORTION OF THIS AGREEMENT (INCLUDING THE AGREEMENT TO ARBITRATE). YOU CAN GET PROCEDURES, RULES AND FEE INFORMATION FROM THE AAA (WWW.ADR.ORG) OR FROM US. FOR CLAIMS OF $25,000 OR LESS, YOU CAN CHOOSE WHETHER YOU’D LIKE THE ARBITRATION CARRIED OUT BASED ONLY ON DOCUMENTS SUBMITTED TO THE ARBITRATOR, OR BY A HEARING IN PERSON OR BY PHONE. ALTERNATIVELY, FOR CLAIMS WITHIN THE JURISDICTIONAL LIMIT OF THE SMALL CLAIMS COURT IN THE STATE ENCOMPASSING YOUR BILLING ADDRESS, EITHER YOU OR VERIZON CAN CHOOSE TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT INSTEAD OF PROCEEDING IN ARBITRATION; FURTHERMORE, IF THE CLAIMS IN ANY REQUEST OR DEMAND FOR ARBITRATION COULD HAVE BEEN BROUGHT IN SMALL CLAIMS COURT, THEN EITHER YOU OR VERIZON MAY CHOOSE TO HAVE THE CLAIMS HEARD IN SMALL CLAIMS COURT, RATHER THAN IN ARBITRATION, AT ANY TIME BEFORE THE ARBITRATOR IS APPOINTED, BY NOTIFYING THE OTHER PARTY OF THAT CHOICE IN WRITING. IF THIS PROVISION OR THE LIMITATION ON BRINGING ACTIONS TO SMALL CLAIMS COURT IS FOUND TO BE INVALID, THEN THIS PROVISION SHALL BE SEVERABLE AND THE MATTER WILL PROCEED IN ARBITRATION; IN NO WAY WILL THIS PROVISION ALLOW FOR AN ACTION TO BE BROUGHT ON A CLASS OR COLLECTIVE BASIS.

(3) THIS AGREEMENT DOESN’T ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL OR GENERAL INJUNCTIVE RELIEF THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT. ANY QUESTION REGARDING THE ENFORCEABILITY UNDER APPLICABLE LAW OR INTERPRETATION OF THIS PARAGRAPH SHALL BE DECIDED BY A COURT AND NOT THE ARBITRATOR.

(4) IF EITHER OF US INTENDS TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 60 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO VERIZON SHOULD BE SENT TO VERIZON WIRELESS DISPUTE RESOLUTION MANAGER, USING THE FORM AVAILABLE HERE: HTTPS://WWW.VERIZON.COM/ABOUT/NOD/NOTICEOF-DISPUTE-WIRELESS-FORM. THE NOTICE MUST INCLUDE ENOUGH INFORMATION TO ALLOW US TO IDENTIFY YOUR ACCOUNT AS WELL AS TO ASSESS AND ATTEMPT TO RESOLVE YOUR CLAIM, INCLUDING THE NAME OF THE VERIZON WIRELESS ACCOUNT HOLDER, THE MOBILE TELEPHONE NUMBER AT ISSUE, A DESCRIPTION OF THE CLAIM, THE SPECIFIC FACTS SUPPORTING THE CLAIM, THE DAMAGES YOU CLAIM TO HAVE SUFFERED AND THE RELIEF YOU ARE SEEKING. THE NOTICE REQUIREMENT IS DESIGNED TO ALLOW VERIZON TO MAKE A FAIR, FACT-BASED OFFER OF SETTLEMENT IF IT CHOOSES TO DO SO. YOU CANNOT PROCEED TO ARBITRATION UNLESS YOU PROVIDE THIS INFORMATION. YOU MAY CHOOSE TO BE REPRESENTED BY AN ATTORNEY OR OTHER PERSON AS PART OF THIS PROCESS, BUT IF YOU DO YOU MUST INDICATE THAT YOU ARE REPRESENTED BY AN ATTORNEY ON THE FORM AVAILABLE AT HTTPS://WWW. VERIZON.COM/ABOUT/NOD/NOTICE-OF-DISPUTE-WIRELESS-FORM AND CONFIRM YOU AUTHORIZE US TO DISCUSS YOUR ACCOUNT INFORMATION WITH THIS ATTORNEY OR OTHER PERSON. THE SUFFICIENCY OF THIS NOTICE OF DISPUTE IS AN ISSUE TO BE DECIDED BY A COURT PRIOR TO THE FILING OF ANY DEMAND FOR ARBITRATION AND THE AAA MUST NOT ACCEPT, ADMINISTER, ASSESS, OR DEMAND FEES IN CONNECTION WITH ANY DEMAND THAT HAS NOT SATISFIED THIS NOTICE OF DISPUTE REQUIREMENT. IF YOU HAVE PROVIDED THIS INFORMATION AND WE ARE UNABLE TO RESOLVE OUR DISPUTE WITHIN 60 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION. WE’LL REIMBURSE ANY FILING FEE THAT THE AAA CHARGES YOU FOR ARBITRATION OF THE DISPUTE AT THE CONCLUSION OF THE ARBITRATION IF YOU FULLY PARTICIPATE IN THE PROCEEDING. WE’LL ALSO PAY ANY ADMINISTRATIVE AND ARBITRATOR FEES CHARGED BY THE ARBITRATION TRIBUNAL. IF THE ARBITRATOR DETERMINES THAT YOUR CLAIM WAS FILED FOR PURPOSES OF HARASSMENT OR IS PATENTLY FRIVOLOUS, THE ARBITRATOR WILL REQUIRE YOU TO REIMBURSE VERIZON FOR ANY FILING, ADMINISTRATIVE OR ARBITRATOR FEES ASSOCIATED WITH THE ARBITRATION. THE ARBITRATOR ASSIGNED TO ANY ARBITRATION BETWEEN VERIZON AND A CUSTOMER SHALL RESOLVE THE CLAIMS WITHIN 120 DAYS OF APPOINTMENT OR AS SWIFTLY AS POSSIBLE THEREAFTER, CONSISTENT WITH FAIRNESS TO THE PARTIES.

(5) WE MAY, BUT ARE NOT OBLIGATED TO, MAKE A WRITTEN SETTLEMENT OFFER ANYTIME BEFORE THE ARBITRATION HEARING. THE AMOUNT OR TERMS OF ANY SETTLEMENT OFFER MAY NOT BE DISCLOSED TO THE ARBITRATOR UNTIL AFTER THE ARBITRATOR ISSUES AN AWARD ON THE CLAIM. IF YOU DON’T ACCEPT THE OFFER AND THE ARBITRATOR AWARDS YOU AN AMOUNT OF MONEY THAT’S MORE THAN OUR OFFER BUT LESS THAN $5,000, OR IF WE DON’T MAKE YOU AN OFFER, AND THE ARBITRATOR AWARDS YOU ANY AMOUNT OF MONEY BUT LESS THAN $5,000, THEN WE AGREE TO PAY YOU $5,000 INSTEAD OF THE AMOUNT AWARDED. IN THAT CASE WE ALSO AGREE TO PAY ANY REASONABLE ATTORNEYS’ FEES AND EXPENSES, REGARDLESS OF WHETHER THE LAW REQUIRES IT FOR YOUR CASE. IF THE ARBITRATOR AWARDS YOU MORE THAN $5,000, THEN WE WILL PAY YOU ONLY THAT AMOUNT.

(6) IF 50 OR MORE CUSTOMERS INITIATE NOTICES OF DISPUTE PURSUANT TO PARAGRAPH 4 ABOVE, OTHERWISE ATTEMPT TO COMMENCE AN ARBITRATION, OR FILE A COMPLAINT IN COURT, WHICH RAISE SIMILAR CLAIMS, AND COUNSEL FOR THE VERIZON WIRELESS CUSTOMERS BRINGING THE CLAIMS ARE THE SAME OR COORDINATED FOR THESE CUSTOMERS, THE CLAIMS SHALL PROCEED IN ARBITRATION IN A COORDINATED PROCEEDING. IN THE FIRST STAGE, 50 ARBITRATIONS WILL PROCEED AND COUNSEL FOR THE VERIZON WIRELESS CUSTOMERS AND COUNSEL FOR VERIZON WIRELESS SHALL EACH SELECT 25 CASES TO PROCEED FIRST IN ARBITRATION IN INDIVIDUAL BELLWETHER PROCEEDINGS BEFORE SEPARATE ARBITRATORS. AFTER THE FIRST STAGE IS COMPLETED, THE PARTIES MUST ENGAGE IN A MEDIATION OF ALL REMAINING CASES, AND VERIZON WILL PAY THE MEDIATION FEE. IF THE PARTIES CANNOT AGREE HOW TO RESOLVE THE REMAINING CASES AFTER MEDIATION, THEY WILL REPEAT THE PROCESS OF SELECTING AND FILING CASES TO BE RESOLVED IN INDIVIDUAL BELLWETHER PROCEEDINGS BEFORE SEPARATE ARBITRATORS, FOLLOWED BY MEDIATION. IN THE SECOND STAGE, 80 ARBITRATIONS WILL PROCEED AND COUNSEL FOR THE VERIZON CUSTOMERS AND COUNSEL FOR VERIZON SHALL EACH SELECT 40 CASES TO PROCEED IN ARBITRATION IN INDIVIDUAL BELLWETHER PROCEEDINGS BEFORE SEPARATE ARBITRATORS. AFTER THE SECOND STAGE IS COMPLETED, THE PARTIES MUST ENGAGE IN A MEDIATION OF ALL REMAINING CASES, AND VERIZON WILL PAY THE MEDIATION FEE. AFTER THE SECOND SET OF ARBITRATIONS AND MEDIATION CONCLUDE, IF THE PARTIES CANNOT AGREE HOW TO RESOLVE THE REMAINING CLAIMS, ANY INDIVIDUAL CUSTOMER WHO IS PART OF THIS COORDINATED PROCEEDING, OR VERIZON, MAY ELECT TO OPT OUT OF ARBITRATION BY PROVIDING NOTICE TO OPPOSING COUNSEL, AND IF THE CUSTOMER WISHES TO PROCEED WITH THE CLAIM THEY MAY FILE AN INDIVIDUAL COMPLAINT IN COURT. FOR THOSE CUSTOMERS WHO DO NOT OPT OUT OF ARBITRATION, THEIR CLAIMS WILL PROCEED IN ARBITRATION IN CONTINUED BATCHES OF 80 CLAIMS AS SET FORTH ABOVE FOR THE SECOND SET. ADDITIONAL CASES INVOLVING SIMILAR CLAIMS BROUGHT BY THE SAME OR COORDINATED COUNSEL SHALL NOT BE FILED IN ARBITRATION UNTIL THE ARBITRATIONS AND MEDIATION FOR PRIOR SETS HAS BEEN COMPLETED. YOU AGREE TO THIS PROCESS EVEN THOUGH IT MAY DELAY THE ARBITRATION OF YOUR CLAIM. IF SUCH A PROCESS IS INITIATED, THE FILING OF A NOTICE OF DISPUTE BY A CUSTOMER IN ACCORDANCE WITH PARAGRAPH 4 OR FILING OF A COMPLAINT IN COURT WILL TOLL ALL APPLICABLE STATUTES OF LIMITATIONS FOR THAT CUSTOMER’S DISPUTE UNTIL THE COMPLETION OF THE PROCESS DESCRIBED IN THIS PARAGRAPH. A COURT WILL HAVE AUTHORITY TO ENFORCE THIS PARAGRAPH INCLUDING BY ENTERING AN INJUNCTION TO PROHIBIT FILINGS IN VIOLATION OF THIS PARAGRAPH.

(7) AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN’T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.

(8) IF A COURT, PURSUANT TO PARAGRAPH 3, DETERMINES THAT THE PROHIBITION ON CLASS ARBITRATIONS OR THE LIMITS ON THE ARBITRATOR’S AUTHORITY CANNOT BE ENFORCED UNDER APPLICABLE LAW AS TO ALL OR PART OF A DISPUTE, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY TO THAT DISPUTE OR PART OF THE DISPUTE, WHICH MAY PROCEED IN COURT EITHER ONCE THE ARBITRATED MATTERS HAVE CONCLUDED OR SOONER IF THE COURT SO REQUIRES.

(9) IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, INCLUDING IF A CUSTOMER OR VERIZON OPT OUT OF ARBITRATION PURSUANT TO PARAGRAPH (6) ABOVE, YOU AND VERIZON AGREE THAT, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW,NO ACTION WILL BE BROUGHT ON A CLASS OR COLLECTIVE BASIS AND YOU AND VERIZON UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.

(Ex. 2 to Ninete Decl. [emphases original.])

            Therefore, Defendant has demonstrated that an agreement to arbitrate exists between the parties that covers the instant dispute, and Plaintiff has not opposed the motion.

CONCLUSION

            For the foregoing reasons, the Court grants Defendant’s unopposed motion to compel arbitration and stays the civil action pending the completion of the Arbitration. 

            Further, on the Court’s own motion, the Court vacates the Case Management Conference set on November 20, 2024, and sets a Status Conference re Arbitration on July 22, 2025 at 8:30 A.M. in Department 207.  The parties shall file a Joint Report regarding the status of the Arbitration no later than 5 court days before the scheduled Status Conference. 

            Defendant shall provide notice of the Court’s orders and file the notice with a proof of service forthwith. 

DATED: October 31, 2024                                                    ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court