Judge: Nathan Vu, Case: 30-2023-01304997, Date: 2023-07-24 Tentative Ruling
Motion to Compel Arbitration
Defendant Payward, Inc.’s Motion to Compel Arbitration and to Stay Proceedings is GRANTED.
This action shall be STAYED pending completion of the arbitration proceedings.
The court SETS an ADR Review Hearing for January 11, 2024, at 8:30 a.m. in Department N15.
Defendant Payward, Inc.’s Request for Judicial Notice is DENIED. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889 [“[W]e know of no ‘official Web site’ provision for judicial notice in California.”]; Searles Valley Minerals Operations, Inc. v. State Board of Equalization (2008) 160 Cal.App.4th 514, 519 [“[A]lthough it might be appropriate to take judicial notice of the existence of the Web sites, the same is not true of their factual content”], italics original.)
Defendant Payward, Inc. moves to compel arbitration of all of the claims brought by Plaintiff Keeho Kim and to stay these proceedings pending completion of arbitration.
Standard for Compelling Arbitration
When a party to an arbitration agreement refuses to submit to arbitration, the other party may petition the court to compel arbitration and stay any pending lawsuit. (See Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.)
This right is contained in Civil Procedure Code section 1281.2, which states:
On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that [an exception applies].
(Code Civ. Proc.., § 1281.2.)
Thus, the court must grant the petition unless it finds that one of the exceptions applies: (1) that no written agreement to arbitrate exists; (2) that the right to compel arbitration has been waived; (3) that grounds exist for revocation of the agreement; or (4) that litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (See Code Civ. Proc., § 1281.2; Condee v. Longwood Management Corp., supra, 88 Cal.App.4th at pp. 218-219.)
The moving party bears the burden of alleging and proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Little v. Pullman, supra, 219 Cal.App.4th at p. 565.) Rules of Court Rule 3.1330 states:
A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.
(Cal. Rules of Court, rule 1.1330; see also Condee v. Longwood Management Corp., supra, 88 Cal.App.4th at p. 218 [party seeking arbitration is required to allege existence of agreement to arbitrate].)
A party opposing the motion bears the burden of alleging and proving by a preponderance of the evidence any fact necessary to its defense. (Little v. Pullman, supra, 219 Cal.App.4th at p. 565.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination. (Ibid.)
“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) “This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” (Id., quotations omitted.)
Existence of an Arbitration Agreement
Defendant seeks to compel arbitration pursuant to the arbitration provision (Arbitration Provision) contained Defendant’s Terms of Services.
The Arbitration Provision provides:
Applicable Law; Arbitration
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.
You and Payward agree to arbitrate any dispute arising from these Terms or your use of the Services, except for disputes in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Payward agree to notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Payward shall be sent to legal@kraken.com . You and Payward further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that any arbitration will occur in San Francisco, California; (c) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (d) that the state or federal courts in San Francisco, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by these Terms and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and Payward will not commence against the other a class action, class arbitration or representative action or proceeding.
(Decl. of Robert S. Sandoval in Supp. of Def.’s Mot. to Compel Arbitration and Stay Proceedings (Sandoval Decl.), ¶¶ 4, 10, Exh. A, § 22, Exh. D, § 23, Exh. E, § 23; see also in Decl. of Nikas Praninskas in Supp. of Def.’s Mot. to Compel Arbitration and Stay Proceedings (Praninskas Decl.), ¶ 5.)
Defendant submitted evidence demonstrating that Plaintiff opened an account to use Defendant’s cryptocurrency exchange platform on February 23, 2021. (See Sandoval Decl., ¶ 7, Exh. C.) Defendant also provided evidence that Plaintiff was required to check a box accepting Defendant’s Terms of Service to create an account. (See Sandoval Decl., ¶¶ 4, 13; Praninskas Decl., ¶ 6; Ben Brown in Supp. of Def.’s Mot. to Compel Arbitration and Stay Proceedings (Brown Decl.), ¶¶ 3-7.)
Defendant also showed that the Terms of Service at the time Plaintiff’s account was created and at the current time contained the same version of the Arbitration Provision. (See Sandoval Decl., ¶¶ 4, 13, 15, Exh. A, § 22, Exh. D, § 23, Exh. E, § 23.) Defendant thus has met its burden to show the existence of an agreement to arbitration between the Plaintiff and the Defendant.
Plaintiff did not oppose this motion and, thus, does not dispute that he registered an account with Defendant and agreed to Defendant’s Terms and Services. Plaintiff also does assert any reason not to enforce the Arbitration Provision.
In any case, the failure to address or oppose an issue in a motion constitutes a waiver on that issue. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; see also Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 [“it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a . . . motion”].)
The court will therefore grant the motion and require that the parties arbitrate their dispute.
Defendant shall give notice of this ruling.