Judge: Michael Shultz, Case: 22CMCV00444, Date: 2023-04-04 Tentative Ruling
Case Number: 22CMCV00444 Hearing Date: April 4, 2023 Dept: A
22CMCV00444 Oscar Miguez Cordoba v. Uber Technologies, Inc.
[TENTATIVE]
ORDER DENYING MOTION TO COMPEL ARBITRATION
I.
BACKGROUND
The complaint alleges that Plaintiff
sustained injuries in an auto accident as a result of Adedayo Doe’s negligence. Plaintiff was a passenger in a car being driven by Doe,
an Uber driver, employed by Uber Technologies, Inc. (“Uber”).
II.
ARGUMENTS
Uber moves to compel Plaintiff to
arbitrate his personal injury claims based on the mandatory arbitration
provision set forth in Uber’s Terms of Service to which Plaintiff agreed when
he signed up for a rider account. The provision delegated the responsibility of
determining arbitrability to the arbitrator.
Plaintiff argues Defendant relies on
the declaration of its lead paralegal, who does not state any foundation or
qualifications regarding the Uber platform. The declaration is not admissible. She
is not a technology expert. Plaintiff denies that he agreed to submit matters
to arbitration. Ordering Plaintiff’s claims against Uber to arbitration will
result inconsistent rulings. The FAA
does not apply. The arbitration provision is unconscionable.
In reply, Defendant contends that
the Uber app will not function if Plaintiff did not accept its terms. The
declaration of Defendant’s paralegal is admissible and supports that Plaintiff
agreed to the Terms of Service.
III.
LEGAL STANDARDS
The
court may order the parties to arbitrate the matter on petition of a party to
an arbitration agreement. (Code
Civ. Proc., § 1281.2). Petitioner’s
burden is to establish that a valid arbitration agreement exists. The
responding party’s burden is to establish a defense to enforcement by a
preponderance of evidence. (Molecular
Analytical Systems v. Ciphergen Biosystems, Inc. (2010)
186 Cal.App.4th 696, 705).
IV. DISCUSSION
Plaintiff purportedly agreed to
arbitration by signing on to Defendant’s internet application and clicking on a
box confirming his agreement to Defendant’s terms of service. This has been
referred to as a “clickwrap” agreement. (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 862). In the context of contracts formed over the
Internet, “mutual manifestation of assent, whether by written or spoken word or
by conduct, is the touchstone of contract.” (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 862). Assent may be inferred from the
consumer’s conduct on the website by checking boxes and clicking buttons. (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 461).
Plaintiff’s
objections to the Declaration of Alejandra Vasquez and the attached exhibits
are sustained as it lacks foundation. Ms. Vasquez declares she is a paralegal
which does not explain her qualifications to attest about the inner workings of
the Uber App or Defendant’s internet platforms when a consumer uses it. The
declaration is also based on hearsay, as she asserts that she relied in part on
“information available to me, including records maintained in the ordinary
course of Uber’s business.” (Vasquez Decl., ¶ 2, 5).
Ms.
Vasquez contends that on May 1, 2021, Plaintiff was presented with an in-app,
blocking, pop-up screen which precluded use of the app unless the user clicked
on the “confirm button.” (Id. ¶ 9-10). There is no evidence of a qualified
witness who can attest to the preparation of any of the documents submitted
under the business records exception to the hearsay rule. (Evid. Code, § 1271; People v. Zavala (2013) 216 Cal.App.4th 242, 248 [where custodians of data provided “ample
testimony” as to the mode of the preparation of trial documents, the details of
the call data recording systems, how and when the data was collected, stored, and
maintained, and also attested to its accuracy.]).
V. CONCLUSION
While
Defendant has shown the existence of an agreement, the evidence is not
competent to objectively establish Plaintiff’s consent to its terms.
Accordingly, the motion is DENIED.