Judge: William A. Crowfoot, Case: 21STCV18078, Date: 2022-10-05 Tentative Ruling

Case Number: 21STCV18078    Hearing Date: October 5, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On May 13, 2021, plaintiffs Tomas Salmasian (“Salmasian”) and Arbi Harounian (“Harounian”) (collectively, “Plaintiffs”) filed this action against defendants Garegin Ghazarya (“Ghazarya”), Rasier, LLC (“Rasier”) (erroneously sued as “Raiser, LLC”) and Uber Technologies, Inc. (“Uber”).  Plaintiffs allege that on June 4, 2019, they were “innocent passengers in an Uber vehicle which rear-ended another vehicle in violation of California Vehicle Code sections 22350 and 21703” on June 4, 2019. 

On September 12, 2022, Uber and Rasier (collectively, “Defendants”) filed this motion to compel Plaintiffs to arbitrate their claims and to dismiss or stay this action pending completion of arbitration. 

On September 21, 2022, Plaintiffs submitted an opposition brief. 

On September 28, 2022, Defendants filed a reply brief.

II.          LEGAL STANDARD

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 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: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.”  (Code Civ. Proc. §1281.2, subds. (a), (b).)  “If an application has been made to a court . . . for an order to arbitrate a controversy . . . the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code of Civ. Proc., § 1281.4.)

III.        DISCUSSION

Defendants submit two declarations from Ryan Buoscio (“Buoscio”), who is employed as Uber’s Senior Program Manager, Safety & Core Services + CLO Tech Operations.  Buoscio offers one declaration regarding each plaintiff.  The Court examines these declarations to determine whether Defendants have met their burden to show that an arbitration agreement exists.

A.   Existence of Arbitration Agreement between Salmasian and Defendants

With respect to Salmasian, Buoscio authenticates Uber’s business records which reflect that on October 17, 2014, Salmasian registered for an Uber Rider account.  (Buoscio Decl. re: Salmasian, ¶ 8, Ex. A.)  Buoscio authenticates historical screenshots of Uber’s website registration page showing that the process for registering for an Uber account via the website required potential Riders, such as Salmasian, to input data and register for an account by clicking a button at the bottom of the webpage that said “Create Account.”  (Id., ¶ 10, Ex. B.)  Underneath the “Create Account” button, applicants were informed that “By clicking “Create Account”, you agree to Uber’s Term and Conditions and Privacy Policy.”  The phrases “Terms and Conditions” and “Privacy Policy” were displayed with light blue underlined texts indicating that they were hyperlinks.  (Ibid.)  When the “Terms and Conditions” hyperlink was accessed, the terms and conditions in effect at the time would be displayed.  Buoscio authenticates a true and correct copy of the terms and conditions in effect at the time Salmasian created his account (the “June 9, 2014 Terms”) and attaches it as Exhibit C.  The June 9, 2014 Terms includes an arbitration agreement.  (Id., Ex. C.)

Buoscio declares that on November 18, 2016, Uber sent Salmasian an email with the subject line “We’ve Updated Our Terms of Use” which expressly stated that continued use of Defendants’ apps would constitute assent to the updated terms.  (Id., ¶¶ 13-14, Ex. D.)  These terms were available via hyperlink from the email and went into effect on November 21, 2016 (the “November 21, 2016 Terms”)  (Id., ¶¶ 14-15, Ex. F.)  Buoscio authenticates a true and correct copy of Salmasian’s trip history showing that he continued to access Defendant’s services.  (Id., Ex. G.) 

The November 21, 2016 Terms includes an arbitration agreement which states the following:

By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Uber on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Uber, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Uber by someone else.

The agreement continues:

You and Uber agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Uber, and not in a court of law.

You acknowledge and agree that you and Uber are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Uber otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Uber each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

The agreement also contains a delegation clause and a clause that provides that the agreement will be governed by the FAA:

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.

          Based on the foregoing, Defendants have met their initial burden to show that an arbitration agreement exists between them and Salmasian.

B.   Existence of Arbitration Agreement between Harounian and Defendants

Defendants submit another declaration from Buoscio which contains testimony and documents regarding Harounian’s account history.  Buoscio declares that on May 16, 2022, Harounian was presented with an in-app blocking pop-up screen with the header “We’ve updated our terms.”  (Buoscio Decl. re: Harounian, ¶ 8.)  The screen also 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, all of which set the text apart from other text on the screen and indicated a hyperlink.”  (Id., Ex. H.)  When a user clicked either hyperlink, the Terms of Use or Privacy Notice, respectively, were displayed.  (Id., ¶ 8.)  Buoscio authenticates a true and correct copy of the terms of use in effect at the time.  (Id., Ex. J (the “April 4, 2022 Terms”).  The pop-up screen also expressly stated that: “By checking the box, I have reviewed and agreed to the Terms of Use and acknowledge the Privacy Notice.”  (Id., ¶ 9, Ex. H.)  Additionally, the screen states that: “I am at least 18 years of age.”  (Ibid.)  Buoscio declares that Harounian clicked the checkbox and tapped “Confirm” on May 16, 2022 at 11:15 AM UTC and attaches a true and correct copy of Harounian’s user account sign-up date and consent record.  (Id., ¶ 9, Ex. I.) 

The April 4, 2022 Terms state, in relevant part: “By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Uber on an individual basis in arbitration as set forth in this Arbitration Agreement, and not as a class, collective, coordinated, consolidated, mass and/or representative action.”  (Ex. J, Section 2.)  The April 4, 2022 Terms also provide the following:

Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including without limitation any claim that all or any part of this Arbitration Agreement is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues, including issues relating to whether the Terms are applicable, unconscionable, or illusory and any defense to arbitration, including without limitation waiver, delay, laches, or estoppel.

(Ibid.) 

Additionally, like Salmasian’s agreement with Defendants, the April 4, 2022 Terms state that the parties “agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce” and that the FAA will govern its interpretation and enforcement and proceedings pursuant thereto.  (Ibid.) 

Accordingly, Defendants have met their initial burden to show that an arbitration agreement exists between them and Salmasian.

C.   Gateway Questions of Arbitrability

Under the FAA, “enforceability of an arbitration agreement is ordinarily to be determined by the court.”  (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 781.)  However, “parties may agree to have an arbitrator decide not only the merits of a particular dispute but also ‘“‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.”’ [Citation.]” (Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 772 [emphasis added].)  Once a court determines that a valid agreement exists and finds that the “‘agreement delegates the arbitrability  issue to an arbitrator, a court may not decide the arbitrability issue.’ [Citation.]” (Trinity v. Life Ins. Co. of North America (2022) 78 Cal.App.5th 1111, 1122 [emphasis added].)  

Here, the arbitration agreements include delegation clauses, which delegate to the arbitrator the threshold questions of whether the case is subject to arbitration, explicitly holding that “the arbitrator...and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement ...” (Buoscio Decl. re: Salmasian, Ex. F, Section 2, Rules and Governing Law; Buoscio Decl. re: Harounian, Ex. J, Section 2, subpart (a)(4).)

Plaintiffs argue that their claims are not arbitrable because Uber’s electronic platform services are separate from any driving or transportation.  (Opp., 7: 6-8:21.)  Plaintiffs emphasize that “Services” is defined as: the use of the “Uber Marketplace Platform” to “facilitate your connection to independent third party providers, including drivers... for the purchase of services... such as transportation....”  (Ibid.)  However, pursuant to the delegation clauses within their arbitration agreements, this Court lacks the authority to make any determination on the issue of arbitrability.  If Plaintiffs seek to pursue these arguments, they must be decided by the arbitrator.

D.  California Rules of Professional Conduct Rule 4.2

Plaintiffs argue that Harounian was improperly contacted by Defendants’ in-house legal department and induced to sign an arbitration agreement.  Defendants state in their reply brief that Harounian accessed the Uber app and was then presented with a pop-up.  The Court agrees that Harounian’s self-instigated interaction with Uber’s application is not the same as an attorney’s communication with a represented plaintiff.  Notably, Plaintiffs provide no evidence that Uber’s in-house legal counsel reached out in their capacity to communicate with Harounian. 

E.   Plaintiffs’ Evidentiary Objections

Plaintiffs filed evidentiary objections to Defendants’ inclusion of trial court rulings in their moving papers (Motion, Stinson Decl., Exhibit P) on the grounds that the rulings are irrelevant, hearsay, and an improper citation because they are not certified for publication.  Plaintiffs’ citation to CRC 8.1115(a) for the proposition that “any decision that is not certified for publication ‘must not be cited or relied on by a court or a party in any other action’” is a selective quotation.  Rule 8.1115(a) actually concerns “an opinion of a California Court of Appeal or superior court appellate division”, which does not include the trial court rulings that Defendants refer to.  Nevertheless, as the Court did not consider these rulings, the Court declines to rule on Plaintiffs’ evidentiary objections. 

IV.         CONCLUSION

Defendants’ motion to compel arbitration is GRANTED.  A status conference is set for April 5, 2023 at 8:30 a.m. in Department 27 of the Spring Street Courthouse regarding the status of arbitration. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.