Judge Peter A. Hernandez, Case Number: 23PSCV02004, Date: 2024-06-12 Tentative Ruling

Judge: Peter A. Hernandez, Case: 23PSCV02004, Date: 2024-06-12 Tentative Ruling

Case Number: 23PSCV02004 Hearing Date: June 12, 2024 Dept: K

The hearing on Defendant Uber Technologies, Inc.’s Motion to Compel Arbitration is CONTINUED to July 19, 2024 at 9:00 a.m. [see below].

Background

Plaintiff Lidia Hernandez-Cortes (“Plaintiff”) sustained injuries and damages in a July 6, 2021 motor vehicle accident in Pomona.

On July 5, 2023, Plaintiff filed a complaint, asserting causes of action against Uber Technologies, Inc. (“Uber”), Dean David Barwick (“Barwick”) and Does 1-30 for:

1. Motor Vehicle

2. General Negligence

A Case Management Conference and Order to Show Cause Re: Failure to File Proof of Service are set for June 12, 2024.

Legal Standard

“Numerous cases observe that arbitration is generally favored under both the FAA and California law.” (Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1247; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-972 [“California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general”].) “There is no public policy favoring arbitration of disputes[, however,] which the parties have not agreed to arbitrate.” (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4^th 644, 653). “[U]nder 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, supra, 40 Cal.App.4th at 1247 [quotation marks and citation omitted].)

Generally, on a motion to compel arbitration, the court must grant the motion unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.) The burden then shifts to the opposing party to prove by a preponderance of the evidence a defense to enforcement (e.g., fraud, unconscionability, etc.) (Id.) “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.” (Engalla, supra, 15 Cal.4th at 972.)

Discussion

Uber moves the court for orders compelling arbitration of Plaintiff’s claims and staying all further judicial proceedings in this action pending completion of arbitration.

Uber Data Scientist Chenshan Yu (“Yu”) represents as follows:

In order to utilize Uber’s platforms, a user must register for an account and agree to certain terms—namely, the Terms of Use then in effect before the user can use the Uber app. (Yu Decl., ¶ 5). Plaintiff initially registered for an Uber Rider account on October 26, 2020 and therein accepted Uber’s July 15, 2020 Terms of Use (“July 2020 Terms”), which included an arbitration agreement.

(Yu Decl., ¶ 7, Exhs. A and B.) The court notes that while Exhibit A referenced in Paragraph 7 of Yu’s Declaration purports to be “a true and correct copy of Plaintiff’s rider account sign-up date,” the only information contained in the court’s copy of Exhibit A is the following language under the header “Reports”: “Apr 10, 2024, 5:27:58 PM chenshan.yu.” April 10, 2024 is the date Yu represents he searched Uber’s database for Plaintiff’s account.

Yu further represents that on February 8, 2021 and February 20, 2022, Plaintiff was presented with an in-app blocking pop-up screen with the header, “We’ve updated our terms.” (Id., ¶ 8). The pop-up further stated, in large type, “We encourage you to read our Updated Terms in full” and under that message had the phrases “Terms of Use” and “Privacy Notice,” which were displayed underlined and in bright blue text to set the text apart from the other text on the screen and indicated a hyperlink. (Id.) When a user clicked either hyperlink, the Terms of Use or Privacy Notice that were published on Uber’s website respectively were displayed. (Id., ¶ 8.) The pop-up screen precluded the use of the Uber app unless or until a user clicked the checkbox on the screen and clicked the large “Confirm” button at the bottom of the screen. (Id., ¶ 9, Exh. C).

The pop-up screen expressly stated that “By checking the box, I have reviewed and agree to the Terms of Use and acknowledge the Privacy Notice” and stated that “I am at least 18 years of age.” (Id., ¶ 8). When a user clicked the checkbox and clicked the “Confirm” button a record of this consent was electronically captured, recorded, maintained and stored in the ordinary course of Uber’s business at the time of the events being recorded, which record is linked to the user’s email address and/or mobile telephone number associated with the user’s account. (Id., ¶ 10).

Yu represents that Plaintiff consented to the January 18, 2021 Terms and December 16, 2021 Terms on February 8, 2021 and February 20, 2022, respectively, by clicking the checkbox and tapping “Confirm.” (Yu Decl., ¶ 11). Yu purports to attach a copy of Uber’s record of Plaintiff’s consent to the January 18, 2021 and December 16, 2021 Terms as Exhibit A in Paragraph 11 of his declaration; however, the only Exhibit A attached to Yu’s declaration is the one referenced above, which does not provide such information.

Uber seeks to compel arbitration based on the January 2021 Terms, which it represents were in effect at the time of the incident. (Motion, 9:11-21). It appears to the court, however, that Uber has not provided documentary evidence of Plaintiff’s consent to the January 2021 Terms, as set forth above.

The court is inclined to continue the hearing on the motion, to July 19, 2024 at 9:00 a.m. The court will permit Uber to file and serve a supplemental declaration from Yu addressing the foregoing concerns no later than nine court days prior to the continued hearing date. The court will also permit Plaintiff to file and serve a response limited to the information contained in Yu’s supplemental declaration no later than five court days prior to the continued hearing date.