I. BACKGROUND 

Plaintiff Karlee Gagg (“Plaintiff”) filed this action against defendants Uber Technologies, Inc., Rasier LLC, Rasier-CA LLC, Brian Barrington Ortiz, Elder Donato Escobar, Antonio T. Tzampop, PV Holding Corp and Does 1 through 50 for damages arising from a motor vehicle incident..  

On August 2, 2022, the motion to compel arbitration filed by Uber Technologies, Inc., Rasier LLC, Rasier-CA LLC (collectively, “Uber”) was granted, and the case was stayed pending arbitration. (Min. Order, Aug. 2, 2022.) 

Plaintiff now moves to lift the stay.  

Plaintiff argues she does not have the means to cover any portion of the arbitration costs and fees, and that Uber will not pay for her share of the costs. Pursuant to Code of Civil Procedure section 1281.98(a)(1), Plaintiff argues that if the drafting party materially breaches the arbitration agreement and is in default, then Plaintiff may elect to withdraw from arbitration and proceed in court. Plaintiff contends Federal Arbitration Act (FAA) does not preempt section 1281.98, and that Uber’s refusal to pay Plaintiff’s share is a material breach. Therefore, Plaintiff contends Uber must either pay the full share, or have this matter be referred back to superior court.  

Uber contends CCP §1281.98 is preempted by the FAA, and that even if it applied, Uber owed no duty to pay Plaintiff’s arbitration fees because Plaintiff has never submitted any declaration or evidence establishing financial hardship. Further, Uber asserts that any and all disputes, including arbitration fees, must be resolved by the arbitrator. 

Plaintiff reiterates the contention that Uber waived their right to compel arbitration by not paying the full share, and that Plaintiff is unable to pay for her share of the costs of arbitration. 

II. LEGAL STANDARD 

California has a long-standing policy of ensuring access to the justice system to address grievances, without regard to financial means. (Weiler v. Marcus & Millichap Real Estate Investment Services, Inc. (2018) 22 Cal.App.5th 970, 978 [232 Cal.Rptr.3d 155, 161, 22 Cal.App.5th 970, 978].) This policy supports the courts’ power to consider the financial situation of a party to determine if bearing arbitration costs would result in that party effectively being deprived of any forum to resolve their claims. (Ibid.) “If sufficient evidence is presented on these issues, and the court concludes the party's financial status is not a result of the party's intentional attempt to avoid arbitration, the court may issue an order specifying: (1) the arbitration shall continue so long as the other party to the arbitration agrees to pay, or the arbitrator orders it to pay, all fees and costs of the arbitration; and (2) if neither of those occur, the arbitration shall be deemed ‘had’ and the case may proceed in the superior court.” (Weiler v. Marcus & Millichap Real Estate Investment Services, Inc., supra, 22 Cal.App.5th at p. 981.) 

III. DISCUSSION 

Plaintiff seeks an order form this Court that Uber either agree to pay the arbitration costs for Plaintiff or waive their right to arbitration because Plaintiff cannot afford to bear her portion of the arbitration expenses. Plaintiff cites to Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87 (Roldan) in support of this contention. In Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 89–90, as modified (Sept. 18, 2013), the Court of Appeal evaluated the trial court’s order denying a motion by plaintiffs seeking that the court order defendant either pay the arbitration costs or waive their right to arbitrate because plaintiffs were allegedly indigent and unable to pay the costs. The Court of Appeal reversed the trial court decision and ordered the trial court to “(1) estimate the reasonable costs of arbitration previously ordered; (2) determine whether any of these plaintiffs are financially able to pay their anticipated share of the costs; and (3) if any of them are unable to do so, issue an order specifying that [defendant] has the option of either paying that plaintiff's share of the costs of arbitration, or waiving its right to arbitrate that plaintiff's case and allowing the case to proceed in court.” (Ibid.) In Aronow v. Superior Court (2022) 76 Cal.App.5th 865, 885, the Court of Appeal held that “the trial court has discretion to decide [plaintiff]'s ability to pay arbitration fees and can do so upon declarations with supporting exhibits or after conducting an evidentiary hearing.” (Emphasis added.) 

The California Supreme Court in Jameson v. Desta (2018) 5 Cal. 5th 594, 622 cited Roldan in approval of the decision showing “under California law when a litigant in a judicial proceeding has qualified for in forma pauperis status, a court may not consign the indigent litigant to a costly private alternative procedure that the litigant cannot afford and that effectively negates the purpose and benefit of in forma pauperis status.” However, the determining factor here is whether there has been a showing by Plaintiff of her indigency. In the most recent case law cited by Plaintiff, a declaration that a plaintiff was unable to pay the arbitration fees and was ‘penniless’ was supported by a letter from the Social Security Administration, recent statements demonstrating the balance of the trust accounts, and a declaration that the plaintiff had no other assets or property. (Hang v. RG Legacy I, LLC (2023) 88 Cal. App. 5th 1243, 1255.) The trial court found, and the Court of Appeal affirmed, this evidence was sufficient for the trial court to determine that the plaintiff could not afford the arbitration costs. (Id. at 1257.) In contrast, Plaintiff here has not provided any evidence for this Court to conclude Plaintiff’s financial status to provide relief.   

Unlike the arbitration agreements in Roldan and Aronow,  which, according to the Court’s review of the cases, did not appear to have any provision regarding the inability to pay, the arbitration agreement here accounts for a waiver of arbitration fees and costs. The provision provides: 

“With the exception of the provisions governing payment of arbitration costs set forth above, your responsibility to pay any filing, administrative, and arbitrator fees will be solely as set forth in the applicable arbitration provider’s rules and shall be up to the amount you would be required to pay if you filed a claim in court. If you have a gross income of less than 300% of the federal poverty guidelines, you are entitled to a waiver of arbitration fees and costs, exclusive of arbitrator fees.”  

(Decl. Dordick, Exh. 3, Section 2(h).)  

However, the agreement distinguishes arbitration fees and costs from arbitrator fees, and it appears that Plaintiff’s claim of her inability to pay is related to the arbitrator fees, which is the bulk of the estimated expenses. Even if Plaintiff submitted a declaration to Uber regarding her qualifying financial strait, the arbitration agreement would not entitle her to a waiver of the fees at issue. Nonetheless, Plaintiff has not submitted any evidence regarding her indigency for this Court to make any determination.  

Lastly, under the principles of contract interpretation, “ “A contract must be interpreted to give effect to the mutual, expressed intention of the parties. Where the parties have reduced their agreement to writing, their mutual intention is to be determined, whenever possible, from the language of the writing alone.” “ (In re Tobacco Cases I (2010) 186 Cal. App. 4th 42, 47.) The Court is not persuaded by Plaintiff’s arguments regarding breach of contract, when nothing in the agreement states that Uber must pay any particular amount, and it is undisputed that Uber never refused to pay for its pro rata share. The Court need not reach the dispute regarding FAA preemption when, on its face, there has been no material breach.  

IV. CONCLUSION 

Based on the foregoing, Plaintiff’s motion to lift stay is granted for the limited purpose of the Court conducting an evidentiary hearing on Plaintiff’s ability to pay the arbitrator fees. The Court sets an OSC re: Hearing on Plaintiff’s Ability to Pay Arbitrator Fees for _________________ in Spring Street Courthouse, Department 31, at 1:30 p.m. If Uber requires additional discovery, Uber may request leave for limited discovery directed at Plaintiff’s financial circumstances. All papers shall be filed in accordance with the deadlines set forth in CCP §1005(b). 

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 6th day of June 2024