Judge: Nathan R. Scott, Case: Professsional Towing LLC v. Agero Administrative Service Corp., Date: 2022-11-04 Tentative Ruling

Case Management Conference

The CMC is vacated.

Arbitration Motion

Defendant Agero Administrative Service Corporation’s motion to compel arbitration is denied.  (Code Civ. Proc., § 1281.2.)

Defendant has not met its burden to show a written arbitration agreement exists that covers plaintiff’s claims.  (See Code Civ. Proc., § 1281.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements].)

The court accepts that clicking on an online portal box to accept terms and conditions may bind the clicker.  (See, e.g., B.D. v. Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 944.) 

But defendant has not presented admissible evidence that plaintiff ever did so.  (See Opp. at pp. 2-3.) 

The Necheles declaration states the declarant’s job title, but does not “provide the requisite preliminary facts to show [the declarant] had personal knowledge” of defendant’s online dispatch portal or the clickable terms and conditions.  (See Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 169.)  Nor does it state facts showing the attached documents satisfy the business records exception.  (See id. at p. 171 [noting absence of custodian of records declaration]; see also Evid. Code, § 1271.)

Defendant correctly notes that prima facie evidence of an arbitration agreement shifts the burden to the opponent to produce evidence challenging the agreement.  (See Gamboa, supra, at p. 165.)

But when the moving party does not produce a signed arbitration agreement in the first instance, there is no call for the opponent to offer evidence of not recalling or not signing the agreement.  (See Gamboa, supra, at p. 165.) 

Instead, when the moving party instead offers hearsay documents and declarations lacking personal knowledge to show an arbitration agreement, the court has discretion to find no prima facie showing was made.  (Chambers v. Crown Asset Management, LLC (2021) 71 Cal.App.5th 583, 590, fn. 1, 593-601.)

Defendant shall give notice.