SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On January 28, 2022, Plaintiff Leandra Bell (“Plaintiff”) filed this action against defendants Uber Technologies, Inc. (“Uber”) and Sergio Doe (“Sergio”) for damages arising from an assault and battery. The complaint alleges that on February 4, 2020, Plaintiff was a passenger in Sergio’s vehicle when Sergio became aggravated at Plaintiff’s request for an additional drop-off, wherein Doe slammed the vehicle door on Plaintiff’s leg, grabbed Plaintiff, and pushed her to the ground. Plaintiff alleges Sergio was acting within the course and scope of his employment as a driver engaged by Uber.   

At this time, Uber moves to compel arbitration.  Plaintiff opposes the motion, and the Uber filed a reply.  

 

In deciding a petition to compel arbitration, trial courts must decide first whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue whether the claims are covered within the scope of the agreement.  (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.)  The opposing party has the burden to establish any defense to enforcement.  (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 (“The petitioner, T–Mobile here, bears the burden of proving the existence of a valid arbitration agreement and the opposing party, plaintiffs here, bears the burden of proving any fact necessary to its defense.”); 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.”].)   

In California, there is a “strong public policy in favor of arbitration.”  (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.)  Accordingly, “doubts concerning the scope of arbitrable issues are to be resolved in favor of arbitration.”  (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak St. (1983) 35 Cal.3d 312, 323.)  Further, “under 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. Sup. Ct. (2006) 140 Cal.App.4th 1238, 1247.)  This policy, however, is tempered by the recognition that arbitration must be based on an enforceable contract, as “[t]here is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate.”  (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653.) 

Moreover, the right to arbitration depends upon contract, and “[t]here is no public policy favoring arbitration of disputes that the parties have not agreed to arbitrate.”  (Lopez v. Charles Schwab & Co., Inc. (2004) 118 Cal. App. 4th 1224, 1229.)  There is a “ ‘strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.’ “  (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9)  However, it is essential to the proper operation of that policy that “ ‘[t]he scope of arbitration is ... a matter of agreement between the parties' [citation], and ‘ “[t]he powers of an arbitrator are limited and circumscribed by the agreement or stipulation of submission.” ‘ [Citations.]”  (Ibid.)  An agreement that the FAA governs the parties’ dispute is binding and enforceable, and thus, that the parties’ agreement is to be read and interpreted under the FAA.  (See Gloster v. Sonic Automotive, Inc. (2014) 2016 Cal.App.4th 438, 446-47.) 

Here, Uber contend Plaintiff expressly agreed to arbitrate the claims she is asserting in this action. Uber asserts Plaintiff registered for an Uber account on September 23, 2019 and agreed to Uber’s December 13, 2017 terms of service, which was applicable at the time, and contained an Arbitration Agreement. As found in the Uber’s December 13, 2017 Terms, the arbitration agreement states in pertinent part: 

"LIMITATION OF LIABILITY.   

UBER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF UBER, EVEN IF UBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.” 

(Gaddis Decl., ¶ 7, Exh. B.)  

Consequently, this arbitration agreement would also encompass Plaintiff’s injuries resulting from the February 4, 2020 incident involving assault and battery by Sergio. Plaintiff further agreed to Uber’s updated January 22, 2021, December 22, 2021, and April 21, 2023 (dated January 17, 2023) Terms of Use, which required Plaintiff to resolve any claim she may have against Uber in arbitration, and which gave the arbitrator exclusive authority to determine the threshold question of arbitrability. Uber argue the January 22, 2021, December 22, 2021, and dated January 17, 2023 Terms include a clear and conspicuous arbitration provision, and the parties agreed the Federal Arbitration Act (“FAA”) would govern the agreement.   

On January 22, 2021, December 22, 2021, and April 21, 2023, Plaintiff was presented with an in-app blocking pop-up screen with the header “We’ve updated our terms.” (Id. at ¶ 8.) Additionally, in large type, was the message “We encourage you to read our Updated Terms in full” and beneath that the phrases “Terms of Use” and “Privacy Notice” were displayed underlined and in bright blue text, set from other text on the screen and indicated by a hyperlink. (Ibid.) The in-app pop-up screen stated, “By checking the box, I have reviewed and agreed to the Terms of Use and acknowledge the Privacy Notice.”  (Ibid.)  The in-app blocking pop-up screen precluded the use of the Uber app unless and until a user clicked the checkbox on the screen and clicked the large “Confirm” button at the bottom of the screen. (Id. at ¶ 9.) Uber contends Plaintiff clicked the checkbox and tapped “Confirm,” and thus, Plaintiff expressly consented to the January 22, 2021, December 22, 2021, January 17, 2023 terms by checking the box. (Id. at ¶ 11; Exh. A.)  All three had an arbitration agreement as follows: 

 

“(a) Agreement to Binding Arbitration Between You and Uber. 

 

Except as expressly provided below in Section 2(b), you and Uber agree that any dispute, claim or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof, (ii) your access to or use of the Services at any time, (iii) incidents or accidents resulting in personal injury to you or anyone else that you allege occurred in connection with your use of the Services . . . regardless whether the dispute, claim, or controversy occurred or accrued before or after the date you agreed to the Terms, and regardless whether you allege the personal injury was experienced by you or anyone else; and (iv) your relationship with Uber, will be settled by binding arbitration between you and Uber, and not in a court of law. This Arbitration Agreement survives after your relationship with Uber ends.”  

 

(Gaddis Decl. at ¶ 12, Ex. D.) (emphasis added.) 

 

Clickwrap agreements are those in which website users are required to click on an “I agree” box after being presented with a list of terms and conditions of use.  (Nguyen v. Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1175-76.)  “Clickwrap agreements require a user to affirmatively click a box on the website acknowledging awareness of and agreement to the terms of service before she or she is allowed to proceed with further utilization of the website. [Citations omitted] Clickwrap agreements ‘have been routinely upheld by circuit and district courts…”  (United States v. Drew (C.D.Cal. 2009) 259 F.R.D. 449, 462 n.22 [internal quotations omitted].)   

On January 22, 2021, December 22, 2021, and April 21, 2023, Plaintiff clicked an in-app box stating, “By checking the box, I have reviewed and agree to the Terms of Use and acknowledge the Privacy Notice.” (Gaddis Decl. ¶¶ 8-11.) The user is not able to ignore the blocking pop-up screens and use the Uber app without clicking the checkbox and clicking the “Confirm” button. (Id. at ¶ 9.)  Plaintiff’s continued use of the Uber App, whether it be direct or as a third-party beneficiary, shows Plaintiff took affirmative action demonstrating agreement, all of which contained arbitration agreements.  (See Selden v. Airbnb, Inc., supra, 2016 WL 6476934 at *5; see also Cordas v. Uber Technologies, Inc. (N.D. Cal. 2017) 228 F.Supp.3d 985, 988-990.)  Accordingly, Uber have shown the existence of an arbitration agreement consented to by Plaintiff.  

In opposition, Plaintiff contends the arbitration clause is an adhesive contract that is both procedurally and substantively unconscionable. The doctrine of unconscionability refers to “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”¿¿(Sonic-Calabasas A, Inc. v. Moreno (2013)¿57 Cal.4th 1109, 1133.) It consists of procedural and substantive components, “the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.”¿¿Id.¿ Although both components of unconscionability must be present to invalidate an arbitration agreement, they need not be present in the same degree.¿(Armendariz v. Found. Health¿Psychcare¿Servs., Inc. (2000)¿24 Cal.4th 83, 114 (abrogated in-part on other grounds by¿Concepcion, 563 U.S. 333).)¿¿¿¿¿ 

“Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.¿ [Citations.]¿ In other words, the more substantively unconscionable the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.”¿¿(Id.) “The party resisting arbitration bears the burden of proving unconscionability.”¿(Pinnacle Museum Tower¿Ass’n¿v. Pinnacle Market Dev. (US) (2012) LLC,¿55 Cal.4th 223, 247.)¿¿ 

“In accordance with choice-of-law principles, the parties may limit the trial court's authority to stay or deny arbitration under the CAA by adopting the more restrictive procedural provisions of the FAA.” (Valencia v. Smyth, supra, 185 Cal.App.4th at 157, 110 Cal.Rptr.3d 180.) “[T]he FAA's procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) do not apply unless the contract contains a choice-of-law clause expressly incorporating them.” (Id. at 174, 110 Cal.Rptr.3d 180.) … The question, therefore, is whether the parties expressly incorporated the FAA’s procedural provisions into their agreements.” (Id. at 177, 110 Cal.Rptr.3d 180; see also Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 387, 394, 25 Cal.Rptr.3d 540, 107 P.3d 217 [“Our opinion does not preclude parties to an arbitration agreement to expressly designate that any arbitration proceeding should move forward under the FAA's procedural provisions rather than under state procedural law” (italics omitted)].)  

(Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 345.)    

Here, Plaintiff does not dispute the FAA governs the parties’ agreement to arbitrate. An agreement that the FAA governs the parties’ dispute is binding and enforceable, and thus, that the parties’ agreement is to be read and interpreted under the FAA.  (See Gloster v. Sonic Automotive, Inc. (2014) 2016 Cal.App.4th 438, 446-47.)  

Uber has established there is an enforceable agreement to arbitrate.  The motion to compel arbitration is GRANTED.  The action is stayed pending the outcome of arbitration.