Judge: William Y. Wood, Case: 37-2023-00016192-CU-NP-NC, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 27, 2024

06/28/2024  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:William Y Wood

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2023-00016192-CU-NP-NC LAM VS. T-MOBILE USA, INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 04/09/2024

Defendant Barclay's Bank Delaware's motion to compel arbitration (ROA # 37) is denied.

The moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, waiver, etc.).

Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413–414; Hotels Nevada v. L.A.

Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758.

The Court finds that Defendant has met its burden of establishing the existence of a valid enforceable agreement to arbitrate. Defendant has attached a copy of the Cardmember Agreement, which contains a mandatory arbitration provision. See Beauchamp Decl. (ROA # 38), Exhibit 2. Further, Plaintiff does not dispute that he entered into an agreement containing an arbitration provision or that the causes of action asserted in the complaint are covered by the agreement.

The Court has carefully considered the arguments and authorities presented by both parties and finds that Plaintiff has met his burden of demonstrating that Defendant waived its right to compel arbitration.

In particular, the Court is persuaded that: (1) Defendant's actions relating to responding to discovery are inconsistent with the right to arbitrate; (2) the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the Defendant notified the Plaintiff of an intent to arbitrate; and (3) Defendant's motion to compel arbitration is set to be heard just two months before trial.

Saint Agnes Med. Ctr. v. PacifiCare of California (2003) 31 Cal. 4th 1187, 1196.

The Court further finds that that the agreement is both procedurally unconscionable (contract of adhesion) and substantively unconscionable (one-sided term allowing Defendant to bring certain claims to court but does not allow Plaintiff to bring a claim in court).

Therefore, the motion to compel arbitration is denied for two reasons: (1) the Court finds that the Defendant waived the right to compel arbitration; and (2) the arbitration agreement is unconscionable.

This minute order constitutes the Court's order. No party is required to submit a proposed order after hearing.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on June 28, 2024. If no party appears at the hearing, this tentative ruling will become the order of the Court as of June 28, 2024. If the parties are satisfied with the Court's tentative ruling or do not otherwise wish to Calendar No.: Event ID:  TENTATIVE RULINGS

3114531 CASE NUMBER: CASE TITLE:  LAM VS. T-MOBILE USA, INC [IMAGED]  37-2023-00016192-CU-NP-NC argue the motion, they are encouraged to give notice to the Court and each other of their intention not to appear, though this notice is not required.

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3114531