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`Case 3:21-cv-00763-H-JLB Document 17 Filed 06/21/21 PageID.237 Page 1 of 8
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`ALYCE FRAHER,
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` Plaintiff,
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`v.
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`VERIZON WIRELESS SERVICES,
`LLC, a Delaware limited liability
`company, and DOES 1 through 10,
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` Defendants.
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`
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` Case No.: 21-cv-00763-H-JLB
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`ORDER:
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`(1) GRANTING DEFENDANT’S
`MOTION TO COMPEL
`ARBITRATION; AND
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`[Doc. No. 3.]
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`(2) DENYING PLAINTIFF’S
`MOTION TO REMAND
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`[Doc. No. 5.]
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`
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`On April 21, 2021, Defendant Verizon Wireless Services, LLC (“Defendant”) filed
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`a motion to compel arbitration and stay the action. (Doc. No. 3.) On May 18, 2021,
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`Plaintiff Alyce Fraher (“Plaintiff”) filed a motion to remand the case to state court. (Doc.
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`No. 5.) The parties filed their respective oppositions to each motion on June 7, 2021. (Doc.
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`Nos. 9, 10.) The parties filed their replies on June 14, 2021. (Doc. Nos. 12, 13.) On June
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`17, 2021, the Court submitted both motions on the papers. (Doc. No. 16.) For the
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`following reasons, the Court grants Defendant’s motion to compel arbitration and denies
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`Plaintiff’s motion to remand.
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`Case 3:21-cv-00763-H-JLB Document 17 Filed 06/21/21 PageID.238 Page 2 of 8
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`In March 2018, Plaintiff went to a local Best Buy to purchase one of Defendant’s
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`Background
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`cell phones and its related services for her son. (Doc. No. 10-2, Fraher Decl. ¶¶ 2-4.) While
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`there, a Best Buy employee reviewed the price of the phone and Defendant’s terms of
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`service with her. (Id. ¶ 5.) She ultimately decided to buy the phone and its services, and
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`she signed an electronic signature pad to finalize the purchase. (See id. ¶¶ 5-9.) Plaintiff
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`maintains that she was never aware of any arbitration agreement before signing the
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`signature pad. (Id.) But according to Defendant, Plaintiff must have accepted its customer
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`agreement to complete the transaction on the signature pad. (Doc. No. 12-1, Supp. Slade
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`Decl. ¶ 3.)
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`Defendant produced a receipt for the transaction that contains Plaintiff’s signature
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`and states the following in bold: “I agree to the VZW Customer Agreement (CA),
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`including settlement of disputes by arbitration instead of jury trial, as well as the
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`terms of the plan and optional services I have chosen. I am aware that I can view the
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`CA anytime at verizonwireless.com.” (Doc. No. 10-1, Henderson Decl., Ex. 2 (emphasis
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`in original); Doc. No. 12-2, Kim Decl. Ex. A (emphasis in original);1 see also Fraher Decl.
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`¶¶ 7, 9 (admitting she signed a signature pad and that the signature appears to be hers).)
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`The referenced customer agreement expressly provides the following mandatory
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`arbitration provisions:
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`How do I resolve disputes with Verizon?
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`WE HOPE TO MAKE YOU A HAPPY CUSTOMER, BUT IF THERE’S
`AN ISSUE THAT NEEDS TO BE RESOLVED, THIS SECTION
`OUTLINES WHAT’S EXPECTED OF BOTH OF US.
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`YOU AND VERIZON BOTH AGREE TO RESOLVE DISPUTES
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`
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`1
`Plaintiff raised concerns that the receipt Defendant submitted in its original motion to compel was
`modified to include Plaintiff’s signature on the second page, not the third page. (Doc. No. 10 at 8.) In
`reply, Plaintiff admits that this was a clerical mistake, and submitted a copy of the original document.
`(Doc. No. 12-2, Kim Decl. ¶ 3 & Ex. A.) The original document submitted by Defendant in its reply
`appears to be identical to the one Plaintiff submitted in her opposition. (Compare Doc. No. 10-1,
`Henderson Decl., Ex. 2, with Kim Decl., Ex. A.)
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`Case 3:21-cv-00763-H-JLB Document 17 Filed 06/21/21 PageID.239 Page 3 of 8
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`ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT. YOU
`UNDERSTAND THAT BY THIS AGREEMENT YOU ARE GIVING
`UP THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF
`A JURY. WHILE THE PROCEDURES MAY BE DIFFERENT, AN
`ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND
`RELIEF, AND MUST HONOR THE SAME TERMS IN THIS
`AGREEMENT, AS A COURT WOULD. IF THE LAW ALLOWS FOR
`AN AWARD OF ATTORNEYS’ FEES, AN ARBITRATOR CAN
`AWARD THEM TOO. WE ALSO BOTH AGREE THAT:
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`(1) THE FEDERAL ARBITRATION ACT APPLIES TO THIS
`AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT CASES, ANY
`DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS
`AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND
`SERVICES YOU RECEIVE FROM US (OR FROM ANY ADVERTISING
`FOR ANY SUCH PRODUCTS OR SERVICES), INCLUDING ANY
`DISPUTES YOU HAVE WITH OUR EMPLOYEES OR AGENTS, WILL
`BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS
`BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) OR
`BETTER BUSINESS BUREAU (“BBB”).
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`(Supp. Slade Decl. Ex. C at 6. (emphasis in original).)
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`Plaintiff alleges that she encountered various issues with Defendant’s services.
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`(Doc. No. 4 ¶¶ 14-21.) She also alleges that Defendant billed her for services that she
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`either did not agree to pay for or did not receive. (Id. ¶¶ 22-29.) On March 13, 2021,
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`Plaintiff filed a complaint in the San Diego County Superior Court, alleging claims against
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`Defendant for (1) negligence, (2) violations of the California Consumer Credit Agency
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`Reporting Act, and (3) violations of California’s Unfair Competition Law. (Doc. No. 1-
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`2.) On March 22, 2021, Plaintiff filed a first amended complaint, adding a state law claim
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`under California’s Consumer Legal Remedies Act and a federal claim under the Fair Credit
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`Reporting Act (the “FCRA”). (Doc. No. 1-3.)
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`Because Plaintiff’s first amended complaint added a federal claim, on April 19,
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`2021, Defendant timely removed the case. (Doc. No. 1.) Two days later, on April 21,
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`2021, Defendant filed a motion to compel Plaintiff to submit her claims to arbitration and
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`stay the action. (Doc. No. 3.) On May 9, 2021, before responding to Defendant’s motion,
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`Case 3:21-cv-00763-H-JLB Document 17 Filed 06/21/21 PageID.240 Page 4 of 8
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`Plaintiff filed a second amended complaint, dropping her lone federal claim. (Doc. No. 4.)
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`On May 18, 2021, Plaintiff filed a motion to remand the case, asking the Court to decline
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`to exercise jurisdiction over her remaining state law claims. (Doc. No. 5.)
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`I. Motion to Compel Arbitration
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`A. Legal Standards
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`Discussion
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`The Federal Arbitration Act (the “FAA”)2 permits “[a] party aggrieved by the
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`alleged failure, neglect, or refusal of another to arbitrate under a written agreement for
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`arbitration [to] petition any United States District Court . . . for an order directing that . . .
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`arbitration proceed in the manner provided for in [the arbitration] agreement.” 9 U.S.C. §
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`4. The FAA reflects an “emphatic federal policy in favor of arbitral dispute resolution.”
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`KPMG LLP v. Cocchi, 565 U.S. 18, 21 (2011). Upon a showing that a party failed to
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`comply with a valid arbitration agreement, the district court must issue an order compelling
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`arbitration. Id. The party moving to compel arbitration carries the burden to show “(1) the
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`existence of a valid, written agreement to arbitrate; and, if it exists, (2) that the agreement
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`to arbitrate encompasses the dispute at issue.” Ashbey v. Archstone Prop. Mgmt., Inc.,
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`785 F.3d 1320, 1323 (9th Cir. 2015) (citation omitted). “Any doubts about the scope of
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`arbitrable issues, including applicable contract defenses, are to be resolved in favor of
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`arbitration.” Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1259 (9th Cir. 2017) (quoting
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`Tompkins v. 23andMe, Inc., 840 F.3d 1016, 1022 (9th Cir. 2016)). “While the Court may
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`not review the merits of the underlying case in deciding a motion to compel arbitration, it
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`may consider the pleadings, documents of uncontested validity, and affidavits submitted
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`by either party.” Macias v. Excel Bldg. Servs. LLC, 767 F. Supp. 2d 1002, 1007 (N.D.
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`Cal. 2011) (internal quotations, citations, and brackets omitted)).
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`
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`2
`The parties agree that the FAA applies to this case. After all, the contract at issue, one for cell
`phone services between citizens of different states, clearly involves commerce, see 9 U.S.C. § 2 (covering
`all transactions “involving commerce”); Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265,
`277 (1995) (reading “involving commerce” in § 2 of the FAA broadly to mean “affecting commerce”).
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`Case 3:21-cv-00763-H-JLB Document 17 Filed 06/21/21 PageID.241 Page 5 of 8
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`B. Whether a Valid Agreement to Arbitrate Exists
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`Fundamentally, “arbitration is a matter of contract.” Rent-A-Center, West, Inc., v.
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`Jackson, 561 U.S. 63, 67 (2010). Courts apply state contract law to determine whether a
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`valid arbitration agreement exists, “while giving due regard to the federal policy in favor
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`of arbitration.” Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 742 (9th Cir. 2014)
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`(international quotation marks and citations omitted); see also First Options of Chicago,
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`Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Under California law, which applies here, the
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`movant need only show the existence of a valid agreement to arbitrate by a preponderance
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`of the evidence. Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014)
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`(citing Rosenthal v. Great W. Fin. Sec. Corp., 926 P.2d 1061 (Cal. 1996)). In so doing, “a
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`court applies a standard similar to the summary judgment standard of Fed. R. Civ. P. 56.”
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`Lomeli v. Midland Funding, LLC, No. 19-CV-01141-LHK, 2019 WL 4695279, at *4 (N.D.
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`Cal. Sept. 26, 2019) (citation omitted).
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`Here, Defendant argues that Plaintiff agreed to arbitrate her claims by signing an
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`electronic sales receipt that expressly incorporated Defendant’s customer agreement and,
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`more specifically, its terms mandating arbitration. (Doc. No. 3 at 8-9; Doc. No. 12 at 8.)
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`[f]or the terms of another document to be incorporated into the document
`executed by the parties the reference must be clear and unequivocal, the
`reference must be called to the attention of the other party and he must consent
`thereto, and the terms of the incorporated document must be known or easily
`available to the contracting parties.
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`Shaw v. Regents of Univ. of California, 67 Cal. Rptr. 2d 850, 856 (Ct. App. 1997) (citation
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`omitted). A contract need not expressly “recite that it ‘incorporates’ another document, so
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`long as it ‘guide[s] the reader to the incorporated document.’” Id. (brackets in original)
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`(citation omitted).
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`The Court agrees with Defendant. Plaintiff claims that she was unaware of any
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`agreement to arbitrate when she signed the signature pad to complete her purchase. (Doc.
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`No. 10-2, Fraher Decl. ¶¶ 7-9.) But the receipt for the transaction submitted by Defendant,
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`Case 3:21-cv-00763-H-JLB Document 17 Filed 06/21/21 PageID.242 Page 6 of 8
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`which contains Plaintiff’s electronic signature, unambiguously states that Plaintiff assented
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`to Defendant’s customer agreement and its terms requiring arbitration. (Doc. No. 12-2,
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`Kim Decl., Ex. A.) Additionally, according to a declaration submitted by Defendant’s
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`senior analyst, who is familiar with how these sales receipts are created and kept, Plaintiff
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`necessarily must have agreed to Defendant’s customer agreement and its arbitration
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`provisions to finalize her purchase on the electronic signature pad. (Doc. No. 12-1, Supp.
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`Slade Decl. ¶¶ 2-3.) The receipt also makes it easy for Plaintiff to access the customer
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`agreement by providing a hyperlink to Defendant website, where Plaintiff may view the
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`agreement in its entirety. (Id.) In total, Defendant sufficiently demonstrates Plaintiff’s
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`assent to the arbitration terms contained in the customer agreement. See Shaw, 67 Cal.
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`Rptr. 2d at 856; see also Lopez v. Terra’s Kitchen, LLC, 331 F. Supp. 3d 1092, 1098 (S.D.
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`Cal. 2018) (holding customer assented to terms of service when “provided with an
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`opportunity to review the terms of service in the form of a hyperlink immediately under an
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`‘I Accept’ button” (citation omitted)). Plaintiff cannot now avoid the arbitration terms
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`because she neglected to read them at the time. See Brookwood v. Bank of Am., 53 Cal.
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`Rptr. 2d 515, 520 (Ct. App. 1996) (“Reasonable diligence requires the reading of a contract
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`before signing it. A party cannot use his own lack of diligence to avoid an arbitration
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`agreement.”) Accordingly, Defendant meets its burden to show that an agreement to
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`arbitrate exists by a preponderance of the evidence.
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`C. Whether the Arbitration Agreement Encompasses the Dispute at Issue
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`The Court next determines “whether the agreement encompasses the dispute at
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`issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000).
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`Here, the agreement at issue broadly requires the arbitration of “ANY DISPUTE THAT
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`IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM
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`ANY EQUIPMENT, PRODUCTS AND SERVICES” that Plaintiff received from
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`Defendant. (Doc. No. 12-1, Supp. Slade Decl., Ex. C at 6. (emphasis in original).) Since
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`all of Plaintiff’s claims in this case relate to her purchase and use of Defendant’s phone
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`and related services, (Doc. No. 4 ¶¶ 35-63), they fall within the scope of the arbitration
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`Case 3:21-cv-00763-H-JLB Document 17 Filed 06/21/21 PageID.243 Page 7 of 8
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`agreement, see Poublon, 846 F.3d at 1259 (stating that arbitration clauses should be
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`construed broadly in favor of arbitration). As a result, the Court must compel Plaintiff to
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`submit her claims to arbitration pursuant to the parties’ agreement. See KPMG, 565 U.S.
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`at 21 (stating that a court must compel arbitration upon a showing that a party failed to
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`comply with a valid arbitration agreement covering the dispute).3
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`D. Whether to Dismiss or Stay the Case
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`Given that Plaintiff must submit her claims to arbitration, the Court must address
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`whether to dismiss or stay the case. “[A] district court may either stay the action or dismiss
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`it outright when . . . all of the claims raised in the action are subject to arbitration.”
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`Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1073-74 (9th Cir. 2014) (citing
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`Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir.1988)); see also Thinket Ink
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`Info. Res. v. Sun Microsystems, Inc., 368 F.3d 1053, 1060 (9th Cir. 2004) (affirming
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`dismissal under Rule 12(b)(6) when all claims were subject to arbitration). Each one of
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`Plaintiff’s claims are subject to arbitration. As a result, the Court, in its discretion,
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`dismisses the action because no claims remain to be litigated in this Court.4
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`II. Motion to Remand
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`The Court then turns to Plaintiff’s motion to remand. On May 9, 2021, Plaintiff
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`amended her complaint, omitting her federal claim. (Doc. No. 4.) Nevertheless, because
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`Plaintiff’s complaint included a federal claim at the time of removal, the Court has
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`jurisdiction to adjudicate her remaining state law claims. See Carnegie–Mellon Univ. v.
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`Cohill, 484 U.S. 343, 349–51 (1988); Nishimoto v. Federman–Bachrach & Assocs., 903
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`F.2d 709, 715 (9th Cir. 1990). In such cases, a district court may, in its discretion, either
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`retain or relinquish its jurisdiction over the remaining state law claims. Carnegie–Mellon
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`Univ., 484 U.S. at 350-51, 357. In exercising its discretion, a district court should consider
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`3
`Plaintiff raised several objections to evidence submitted by Defendant in its motion to compel and
`corresponding reply. (Doc. No. 11 at 1-3; Doc. No. 14 at 1-3.) To the extent the Court considers any
`evidence objected to, Plaintiff’s objections are overruled. Otherwise, the Court sustains Plaintiff’s
`objections where valid and overrules them where invalid.
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`The parties may move to re-open the case to confirm or vacate the arbitration award.
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`Case 3:21-cv-00763-H-JLB Document 17 Filed 06/21/21 PageID.244 Page 8 of 8
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`“the principles of economy, convenience, fairness, and comity which underlie the pendent
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`jurisdiction doctrine.” Id. at 357.
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`Under the circumstances, the Court elects to retain jurisdiction over the case.
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`Declining to exercise jurisdiction would only delay the inevitable: that this case must be
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`sent to arbitration. See Pak v. EoCell, Inc., No. 20-CV-05791-VC, 2020 WL 6318725, at
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`*2 (N.D. Cal. Oct. 28, 2020). Both parties already completely briefed Defendant’s motion
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`to compel arbitration and share an interest its speedy resolution. Comity also does not
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`favor remand because the FAA primarily governs Defendant’s motion. See Ketroser v. UB
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`SR LLC, No. 19-CV-05554-YGR-RMI, 2020 WL 4906068, at *3 (N.D. Cal. July 9, 2020),
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`report and recommendation adopted, No. 19-CV-05554-YGR, 2020 WL 4904863 (N.D.
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`Cal. Aug. 20, 2020). Finally, fairness also counsels toward exercising jurisdiction because
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`Plaintiff decided to amend her complaint to include a federal claim after Defendant notified
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`her of its intention to enforce the parties’ arbitration agreement. (Compare Doc. No. 1-2,
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`with Doc. No. 7-1, Uong Decl, Ex. A.) As a result, the Court, in its discretion, denies
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`Conclusion
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`For the foregoing reasons, the Court grants Defendant’s motion to compel arbitration
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`and denies Plaintiff’s motion to remand. The Court orders Plaintiff to submit her claims
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`to arbitration and dismisses the case. The Court directs the Clerk to close the case.
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`IT IS SO ORDERED.
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`DATED: June 21, 2021
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`MARILYN L. HUFF, District Judge
`UNITED STATES DISTRICT COURT
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