Mussa Seid vs. Uber Technologies, Inc.

Dean Witter Reynolds (2002) 537 U.S. 79, 84.) “Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitration. [Citations.] The threshold question requires a response because if such an agreement exists, then the court is statutorily required to order the matter to arbitration.” (Fleming v. Oliphant Financial, LLC (2023) 88 Cal.App.5th 13, 19 [internal quotation marks omitted].) The arbitration clause at issue is subject to the Federal Arbitration Act. “The FAA [Federal Arbitration Act], which includes both procedural and substantive provisions, governs [arbitration] agreements involving interstate commerce.” (Avila v.

Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 840.) However, “[t]he procedural aspects of the FAA do not apply in state court absent an express provision in the arbitration agreement.” (Ibid.) Here, the arbitration provision expressly states “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.” (Pelkey Decl., Ex.

H.) (See Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122 [“[t]he phrase 8 ‘pursuant to the FAA’ is broad and unconditional,” and unambiguously adopts both the procedural and substantive aspects of the FAA].) Under the FAA, the Court must grant a motion to compel arbitration if any suit is brought upon “any issue referable to arbitration under an agreement for such arbitration” (9 U.S.C. § 3), subject to “such grounds as exist at law or in equity for the revocation of any contract...” (9 U.S.C. § 2).

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. (See Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396 [under both federal and state law, “the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate”]; Rosenthal v. Great Western Fin’l Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal) [moving party’s burden is a preponderance of evidence].)

The burden then shifts to the resisting party to prove a ground for denial. (Rosenthal, supra, 14 Cal.4th at p. 413.) “In determining the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).) But the FAA’s policy favoring arbitration ... is merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.

Or in another formulation: The policy is to make arbitration agreements as enforceable as other contracts, but not more so. Accordingly, a court must hold a party to its arbitration contract just as the court would to any other kind. (Morgan v. Sundance, Inc. (2022) 596 U.S. 411 [internal citations and quotation marks omitted].) III. ANALYSIS A valid agreement to arbitrate exists between the parties, and Plaintiff’s claims fall within the scope of the agreement. The relevant language of the Terms of Use provides: [] you and Uber agree that any dispute, claim or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof, (ii) your access to 9 or use of the Services at any time, (iii) incidents or accidents resulting in personal injury that you allege occurred in connection with your use of the Services, whether the dispute, claim or controversy occurred or accrued before or after the date you agreed to the Terms, or (iv) your relationship with Uber, will be settled by binding arbitration between you and Uber, ad not in a court of law.

This Agreement survives after your relationship with Uber ends. (Pelkey Decl., Ex. H.) The arbitration provision is unequivocal that it applies to disputes arising out of the current or prior versions of these Terms. Additionally, Plaintiff’s lawsuit concerns injuries he sustained as a result of a collision he was in while traveling as a passenger with an Uber driver. (Complaint at ¶ 12.) Plaintiff is bound by the terms of the arbitration provision even if he did not actually read them. “An arbitration clause within a contract may be binding on a party even if the party never actually read the clause.” (Pinnacle, supra, 55 Cal.4th at p. 236.)

Furthermore, courts have distinguished between “two flavors” of Internet contracts: “ ‘ “clickwrap” (or “click-through”) agreements, in which website users are required to click on an “I agree” box after being presented with a list of terms and conditions of use; and “browsewrap” agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen.’” (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 862 [quoting Nguyen v.

Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1175-1176].) “Some internet contracts are a blend of the two, and have been called a ‘hybrid design,’ ‘modified clickwrap’, or ‘sign-in wrap’ agreement. ‘Sign-in-wrap’ agreements are those in which a user signs up to use an internet product or service, and the signup screen states that acceptance of a separate agreement is required before the user can access the service.” (Colgate v. Juul Labs, Inc. (N.D. Cal. 2019) 402 F.Supp.3d 728, 763.) Clickwrap agreements are generally enforceable. (See Disney Enters. v.

Redbox Automated Retail, LLC (C.D. Cal. 2018) 336 F.Supp. 3d 1146, 1153; In re Facebook Biometric Info. Privacy Litig. (N.D. Cal. 2016) 185 F.Supp. 3d 115, 165.) In fact, courts have consistently enforced modified clickwrap agreements less conspicuous than those at issue here. (See Lee v. Ticketmaster L.L.C. (9th Cir. 2008) 817 F.App’x 393, 394-395; Dohrmann v. Inuit, Inc. (9th Cir. 2020) 823 F.App’x 482, 484.) 10 Defendants presented Plaintiff with a hybrid clickwrap agreement where he encountered an in-app blocking pop-up screen with a hyperlink to the Terms of Use, notice that the Terms of Use had been updated, and requirement that he click “Confirm” before being permitted to use the app. (Pelkey Decl. at ¶¶ 15, 16, Ex.

G.) As noted by the Court in Meyer v. Uber Techs., Inc. (2017) 868 F.3d 66, 79 “[a]s long as the hyperlinked text was itself reasonably conspicuous – and we conclude that it was – a reasonably prudent smartphone user would have constructive notice of the terms.” The Court agrees with that rationale as applied to the similar set of facts here. Defendant argues the terms explicitly outline the clear delegation of authority to the arbitrator to determine threshold issues. (Mtn. to Compel Arbitration at pp. 10:26-11:1.)

The arbitration provision provides: 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 applicable, unconscionable or illusory and any defense to arbitration including waiver, delay, laches, or estoppel.

If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a dispute, you and Uber agree that the arbitrator will decide that issue. (Pelkey Decl., Ex. H.) The question of whether the parties agreed to arbitrate a particular dispute is generally to be decided by the court. (AT&T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 649.) The parties may, however, agree to submit the arbitrability question itself to arbitration. (First Options of Chicago, Inc. v.

Kaplan (1995) 514 U.S. 938, 943.) Courts should find that the parties agreed to arbitrate arbitrability only where there is clear and unmistakable evidence that they did so, resolving any ambiguity in favor of a finding that the issue is for the court to determine. (Id. at pp. 944-45.) Here, based on the delegation clause noted above, it is clear and unmistakable that the parties agreed to delegate threshold questions 11 of arbitrability to the arbitrator. Thus, it is only appropriate for the Court to compel this matter to arbitration.

Plaintiff does not oppose Defendants’ motion so long as it is granted as to the Uber Defendants only. (Statement of Non-Opposition at p. 1:25-26.) Plaintiff notes that Defendant Quraishy is not a party to Defendants’ motion and has no right to arbitration in connection with this claim. (Id. at pp. 1:26-2:2.) Defendants have not briefed whether third parties such as Defendant Quraishy should also be subject to arbitration, nor has Defendant Quraishy filed any opposition. Indeed, Defendant Quraishy has also not joined this motion.

Accordingly, the Court heeds Plaintiff’s request. The Motion to Compel Arbitration is GRANTED as to Defendants Uber Technologies, Inc., Raiser, LLC, and Raiser-CA, LLC. This action is hereby STAYED pending the outcome of arbitration. (Code Civ. Proc. § 1281.4; 9 U.S.C. § 3.) IV. CONCLUSION The Motion to Compel Arbitration is GRANTED. This action is hereby STAYED pending the outcome.