SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On April 6, 2023, Plaintiff Aaron Ferguson (“Plaintiff”) filed this action against defendants Miguel Angel Can (“Can”), Uber Technologies, Inc. (“Uber”), Raiser-CA, LLC, and Rasier, LLC for damages arising from a motor vehicle accident on June 5, 2022.  The complaint alleges Plaintiff was a passenger in Can’s vehicle when Can made a left turn and collided with Juan Ricardo Barrows.  At the time of the accident, Can was allegedly acting as an agent for Uber.   

At this time, Defendants Uber Technologies, Inc., Raiser-CA, LLC, and Rasier, LLC (collectively, “Uber Defendants”) move to compel arbitration. The hearing on this motion was originally scheduled for July 21, 2023. The motion was fully briefed for that hearing date. On July 19, 2023, Defendant filed a Notice of Errata. A day before the hearing, Defendants rescheduled the hearing and unilaterally pronounced “[a]ny parties who intend to file an opposition or reply must comply with California Code of Civil Procedure section 1005, based on the new motion hearing date set forth above.” Plaintiff then filed an additional opposition, and Defendant filed an additional reply. 

 

Here, the Uber Defendants contend Plaintiff expressly agreed to arbitrate the claims he is asserting in this action. The Uber Defendants assert Plaintiff agreed to Uber’s September 5, 2013, January 18, 2021, December 16, 2021 and January 17, 2023 Terms of Use, which required Plaintiff to resolve any claim he may have against the Uber Defendants in arbitration, and which gave the arbitrator exclusive authority to determine the threshold question of arbitrability. The Uber Defendants argue the January 2023 Terms include a clear and conspicuous arbitration provision, and the parties agreed the Federal Arbitration Act (“FAA”) would govern the agreement.   

The Uber Defendants assert that Plaintiff signed up for an Uber account on January 18, 2014. (Mot. Gaddis Decl. ¶ 8.) The Terms of Service in effect on January 18, 2014 were the September 5, 2013 terms, which contained an Arbitration Agreement. (Ibid.) On January 23, 2021, December 24, 2021, and January 27, 2023, Plaintiff was presented with an in-app blocking pop-up screen with the header “We’ve updated our terms.” (Mot. Gaddis Decl. ¶ 9.) 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. (Ibid; Exh. C.) Defendants contends Plaintiff clicked the checkbox and tapped “Confirm,” and thus, Plaintiff expressly consented to the January 18, 2021, December 16, 2021, and January 17, 2023 terms by checking the box on January 23, 2021, December 24, 2021, and January 27, 2023.  (Ibid. at ¶ 9.) Plaintiff does not dispute this action arises out of Plaintiff’s use of Uber’s services.   

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 he or he 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].)   

In agreeing to the December 2021 Terms, Plaintiff had to click an in-App box stating, “I have reviewed and agree to the Terms of Use and acknowledge the Privacy Notice.” (Mot. Gaddis Decl. ¶ 9-13; Exhs. C-E.) 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 ¶¶ 10, 14.)  Plaintiff’s continued use of the Uber App 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, Defendants have shown the existence of an arbitration agreement consented to by Plaintiff.  

In opposition, Plaintiff contends that he was not provided with reasonable notice of the arbitration agreement to assent to arbitration. Further, Plaintiff argues that there is a danger of conflicting findings because Michael Snow (“Snow”) is not a party to the arbitration agreement, and that there is no arbitration agreement between Plaintiff and Defendant Can. Plaintiffs cite to CCP section 1281.2 and contend that even if an enforceable arbitration agreement exists between Plaintiff and the Uber Defendants, that Defendant Can did not sign any agreement to arbitrate claims. However, as the Uber Defendants note, Defendant Can did not oppose this motion. Furthermore, Plaintiff Snow is a plaintiff in the related case 23STCV10027, in which the Court recently granted the Uber Defendants’ motion to compel arbitration (Min. Order, Oct. 10, 2023.). Furthermore, the two actions are currently separate proceedings, and the Court will treat it as such. Plaintiff argues that the contractual provisions were inconspicuous and that Plaintiff was not required to click on the hyperlink.  Plaintiff, however, does not dispute signing-up for Uber’s App as detailed in the Uber Defendants’ motion, or otherwise clicking on the “Confirm” button and accepting Uber’s user agreement. Plaintiff argues that the Uber Defendants did not claim Plaintiff actually saw the agreement and clicked it, yet notably Plaintiff does not argue that he did not see it or click on it. Additionally, as to whether Plaintiff did or did not read the agreement, as with other types of agreements, “[t]he failure of the [party] to carefully read the agreement and the amendment is not a reason to refuse to enforce the arbitration provisions.”  (Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1115; see also Randas v. YMCA of Metropolitan of Los Angeles (1993) 17 Cal.App.4th 158, 163 [“It is well established that in the absence of fraud, overreaching, or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it.”].)   

Therefore, the parties entered into a valid arbitration agreement.   

 

b. FAA 

“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.)  

While Plaintiff argues CCP § 1281.2 allows the court to deny a motion to compel arbitration where there is a possibility of conflicting rulings concerning parties not bound by the arbitration agreement, because Plaintiff and the Uber Defendants agreed the FAA would govern the agreement, the court cannot look to CCP § 1282.2 to deny the motion to arbitrate.  (Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 342-43, n 345-46.)   

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

 

Moving Defendants are ordered to give notice.