Case Number: 19STCV35469 Hearing Date: February 13, 2020 Dept: 27
[TENTATIVE] ORDER RE: MOTION TO COMPEL ARBITRATION
On October 3, 2019, plaintiffs Ashley Heard (“Ashley”) and Jason Heard (“Jason”) filed this action against defendants City of Long Beach and Neutron Holdings, Inc. dba Lime (“Lime”). Lime offers electric scooter rentals through a smartphone application. Ashley alleges that on July 3, 2019, she was operating a Lime electric scooter when she suddenly hit a large and deep pothole causing her to fall from the scooter and sustain severe injuries. Lime moves to compel arbitration.
The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. (Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1363.) A contract is not formed without mutual assent. (Civ. Code, §§ 1550, 1565.) “Contracts formed on the Internet come primarily in two flavors: ‘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.” (Nguyen v. Barnes & Noble, Inc. (9th Cir. 2014) 763 F.3d 1171, 1176.) Registering for and using an account via a smartphone application can in certain circumstances constitute an agreement to arbitration. (Meyer v. Uber Technologies, Inc. (2nd Cir. 2017) 868 F.3d 66, 80 [applying California law].)
Lime submits the declaration of Kevin J. Bajurin, a Lime legal data specialist, to describe the process a customer must go through to rent and use a Lime scooter. He explains a user must register with the Lime app, which includes pressing a “NEXT” button. Under that button is that statement, “By signing up, I confirm that I am at least 18 years old, and that I have read and agreed to Lime’s User Agreement & Terms of Service.” Bajurin attaches a copy of the User Agreement and Terms of Service he states was in effect and which contained an arbitration agreement. Throughout his declaration, Bajurin refers to a plaintiff named Liam O’Connell. Bajurin states he reviewed Lime’s records pertaining to that plaintiff and the arbitration agreement in effect on October 5, 2018 when O’Connell registered for the Lime app. Bajurin does not mention Ashley, Ashley’s records, if and when Ashley registered for a Lime account, or what arbitration agreement was in effect when Ashley registered (assuming she had).
Lime has not satisfied its burden of proving that Ashley agreed to arbitrate. First, nothing in the Bajurin declaration refers to Ashley. Second, Ashley does not allege that she rented or reserved the scooter, only that she was operating it, which allows the possibility that someone else registered with the Lime app, rented the scooter, and then handed it over for her use. There is no evidence that Ashley herself registered for an account and agreed to the User Agreement and Terms of Service. Third, even if at some point Ashley had registered via the Lime application, Lime presents no evidence of the arbitration agreement in effect on the date she registered. The Court cannot infer the existence of an arbitration agreement between Ashley and Lime merely from the fact that Ashley was operating a Lime scooter, or infer that Ashley consented to an arbitration agreement that contained the same terms as the agreement Bjurin states was in effect on October 5, 2018. (Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563, 570 [court cannot infer existence or terms of arbitration agreement based on sample arbitration agreement].)
In its reply papers, Lime attaches an email in which Plaintiffs’ counsel lists Ashley’s email address and phone number and states “this information shows Ms. Heard’s rental of a Lime Scooter.” Assuming this email is sufficient to prove that at some point Ashley registered with the Lime application, it does not establish the date when she registered, whether an arbitration agreement was in effect when she registered, or the terms of any such arbitration agreement. (Ibid.)
In addition, Lime does not discuss any grounds for arbitrating Jason’s claim for loss of consortium.
As the party moving to compel arbitration, Lime has the burden to show that Plaintiffs consented to arbitrate. Lime did not satisfy that burden. Therefore, Lime’s Motion to compel arbitration is DENIED.
Moving party to give notice.