Case Number: BC714256 Hearing Date: December 19, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SAMANTHA GRAND,

Plaintiff(s),

vs.

SALIM “DOE”, ET AL.,

Defendant(s).

Case No.: BC714256

[TENTATIVE] ORDER DENYING MOTION TO COMPEL ARBITRATION

Dept. 3

1:30 p.m.

December 19, 2019

Background Facts

Plaintiff, Samantha Grand filed this action against Defendants, Salim “Doe” and Uber Technologies, Inc. for damages arising out of an automobile accident. Plaintiff alleges she was injured in an automobile accident in her capacity as a rider in an Uber vehicle driven by Salim “Doe.”

History of Motion to Compel Arbitration

The Court was originally scheduled to hear this motion on 9/30/19. Plaintiff failed to oppose the motion, and the Court issued a tentative ruling granting the motion. Plaintiff appeared at the hearing and sought a continuance, which was granted. The Court continued the hearing on the motion to 10/18/19.

On 10/02/19, Plaintiff filed a doe amendment naming Jose Luis as Doe 1 to the action.

Motion to Compel Arbitration

a. Parties’ Positions

At this time, Uber moves to compel all claims against it to be heard by way of binding arbitration. Uber provides evidence that Plaintiff digitally signed an arbitration agreement when she signed up to use the ride sharing service.

Plaintiff opposes the motion, arguing (a) Plaintiff’s claims against the Uber driver and the driver of the other automobile are not subject to arbitration, and (b) the motion is premature because Luis has only recently been named, and there may be uninsured/underinsured motorist issues. Plaintiff also briefly contends Defendant waived its right to compel arbitration by waiting several months after filing an answer to file this motion.

b. Inconsistent Rulings

CCP §1281.2(c) provides for an exception to the requirement that the Court grant a motion to compel arbitration. Specifically, it provides, in pertinent part, “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: A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. …”

Plaintiff argues the Uber driver, Doe Salim, and the driver of the other automobile involved in the collision, Jose Luis, are not parties to the arbitration agreement, and there is a risk of inconsistent rulings if the case proceeds by way of litigation against Salim and Luis, but by way of arbitration against Uber. On its face, this appears to be correct. Uber, in reply, argues (a) the claims against these drivers fall within the scope of the arbitration agreement, (b) there are no other defendants currently at issue in the litigation, and (c) the other drivers can enforce the arbitration agreement against Plaintiff.

Uber argues Plaintiff’s claims against Salim and Luis fall within the scope of the arbitration clause, relying on EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1320 to support its position. In EFund, the trial court denied a motion to compel arbitration brought by various persons affiliated with the corporate entity defendant on the ground that those persons were not signatories to the agreement. The court of appeals reversed, holding that those persons were beneficiaries of the agreement and entitled to enforce the agreement.

The Court is not, at this time, voicing an opinion on whether Salim Doe, who was driving for Uber at the time of the accident, could successfully move to compel arbitration of Plaintiff’s claims against him, or even whether Uber could successfully require Salim Doe to submit all claims arising out of this accident to arbitration. The Court need not do so, because there is absolutely no relationship between Luis and Uber. Luis was simply a person driving on a public street who happened to be involved in an accident with an Uber driver. The Court cannot fathom any theory pursuant to which Luis would be obligated to submit his claims to arbitration.

Uber next argues Salim Doe and Jose Luis are “not parties” to this action. Uber appears to base this argument on the fact that neither of them has appeared in the action to date. They are, however, clearly named parties to the action. If they are ultimately dismissed, Uber would be free to renew this motion. At this time, however, they are named parties to the action, regardless of whether or not they have appeared in the action.

The Court finds Plaintiff made a showing that there is a risk of inconsistent rulings if her claims against Uber are submitted to arbitration and her claims against the driver defendants are litigated. It is entirely possible that an arbitrator could find the Uber driver to be an employee of Uber and also find the driver 100% liable for the accident, while a jury could find the driver to be an independent contractor and/or find the Uber driver to have a different percentage of liability for the accident; this would be inconsistent. The motion to compel arbitration is therefore denied.

c. Waiver

As noted above Plaintiff also argues Uber waived its right to compel arbitration. The Court need not decide this issue at this time, as the motion is denied based on the possibility of inconsistent rulings.

The Court briefly notes that the parties’ arbitration agreement includes a provision requiring the arbitrator to decide issues of arbitrability. Uber argues the arbitrator would have to decide any issues relating to waiver. The Court agrees. This motion, however, is being decided based on the possibility of inconsistent rulings, not based on a finding that the arbitration agreement is otherwise unenforceable. This appears to be an issue squarely presented for the trial court to rule upon, per §1281.2(c), and Uber does not argue to the contrary in its opposition.

Moving Defendant is ordered to give notice.