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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No. 22-cv-209-MMA (MDD)
`
`ORDER DENYING DEFENDANTS’
`MOTION TO DISMISS AND
`CONSOLIDATING THE ACTION
`
`[Doc. No. 16]
`
`JOSE MEDINA CAMACHO and
`RHONDA COTTA, individually and on
`behalf of all others similarly situated,
`Plaintiffs,
`
`v.
`PEOPLECONNECT, INC, INTELIUS
`LLC, and THE CONTROL GROUP
`MEDIA COMPANY, LLC,
`
`Defendants.
`
`
`Plaintiffs Jose Medina Camacho and Rhonda Cotta (individually “Plaintiff
`
`Camacho” and “Plaintiff Cotta,” and collectively “Plaintiffs”) bring this putative class
`action against Defendants PeopleConnect, Inc., Intelius LLC, and The Control Group
`Media Company, LLC (individually “Defendant PeopleConnect,” “Defendant Intelius,”
`and “Defendant TCG,” and collectively “Defendants”) alleging California and Alabama
`right of publicity claims. Doc. No. 1 (“Compl.”). Defendants now move to dismiss the
`Complaint on the grounds that Plaintiffs agreed to arbitration, Plaintiffs did not
`sufficiently state a claim under California and Alabama law, federal law bars Plaintiffs’
`claims, and Plaintiffs’ claims are barred by California’s anti-SLAPP statute. See Doc.
`
`
`
`-1-
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`22-cv-209-MMA (MDD)
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`No. 16-1 at 11.1 Plaintiffs filed an opposition, to which Defendants replied. See Doc.
`Nos. 17, 19. The Court found the matters suitable for determination on the papers and
`without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local
`Rule 7.1.d.1. Doc. No. 20. For the reasons set forth below, the Court DENIES
`Defendants’ motion and CONSOLIDATES this action under the lead case, civil case
`number 21-cv-1954-MMA (MDD).
`I. BACKGROUND2
`Plaintiffs’ action arises from Defendants’ alleged misappropriation of Plaintiffs’
`
`identities without consent for a commercial benefit. Compl. ¶¶ 34–35. Defendant TCG,
`Defendant Intelius, and Defendant PeopleConnect are companies. Id. ¶¶ 9–10.
`“Defendants operate or operated two websites—Intelius.com and USSearch.com—that
`purport to sell access to a databases containing proprietary ‘detailed reports’ about people
`to anybody willing to pay for a monthly subscription.” Id. ¶ 1. Defendant TCG “controls
`and operates four ‘people search’ websites”—including Intelius.com and USSearch.com,
`the people search websites at issue in the present action. Id. ¶¶ 22, 25, 29. Intelius.com
`and USSearch.com (the “Websites”) are websites “that sell[] access to comprehensive
`background reports ‘on just about anyone.’ The reports are compiled in part from
`databases and public record repositories.” Id. ¶¶ 25, 29. “PeopleConnect, Inc., together
`with TCG and Intelius, operated and controlled Intelius.com and USSearch.com until
`July 2021. On or after July 2021, Intelius.com and USSearch.com were solely controlled
`and operated by TCG and Intelius. But during both time periods, the Intelius.com and
`USSearch.com Websites operated as described herein.” Id. ¶ 36.
`
`
`
`1 All citations to electronically filed documents refer to the pagination assigned by the CM/ECF system.
`
` 2
`
` Because this matter is before the Court on a motion to dismiss, the Court must accept as true the
`allegations set forth in the Complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740
`(1976).
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`22-cv-209-MMA (MDD)
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`As alleged in the Complaint, Defendant TCG “designed each of the People Search
`Websites to operate in a substantially similar way: to misappropriate consumers’
`identities for its own commercial gain by using Plaintiffs’ and the Class members’
`identities in conjunction with an offer to purchase a paid subscription to access its
`database.” Id. ¶ 23. Defendant TCG “created and controls the marketing and advertising
`of all the People Search Websites, including the nearly-identical Marketing Page
`solicitations at issue in this case.” Id. ¶ 24.
`
`Regarding marketing their services, the Complaint provides the following:
`
`
`Defendants encourage consumers to perform a free “people search” on their
`websites. When consumers perform a free search for an individual—by
`typing the individual’s first and last name into a search bar—Defendants
`display webpages featuring the searched individual’s full name alongside
`certain uniquely identifying information, including age, location, and names
`of relatives. The purpose of these pages is twofold: first, they show potential
`customers that Defendants’ database contains detailed reports for the specific
`individual they searched for and represent that the detailed report contains
`much more information about the individual than the “free” report, and
`second, they offer to sell them a paid subscription to their services, where they
`can access detailed reports about anybody in their database. In other words,
`Defendants do not offer to sell detailed reports about the individuals searched
`on their websites, but rather, use their identities to sell subscriptions to
`Defendants’ paid services.
`
`
`Id. ¶ 2. As to the results page rendered after a “free” search is performed, “[o]nce a
`consumer selects an individual . . . from the Intelius Marketing Page, Intelius displays a
`checkout page with two offers to purchase a subscription to the website,” and the offer
`page reads: “(i) a ‘MOST POPULAR’ tier costing $24.86 per month with access to one
`month of unlimited reports and (ii) the ‘Power User’ tier costing $42.25, with access to
`two months of unlimited reports.” Id. ¶ 28. On the US Search website, “[o]nce a
`consumer selects an individual . . . from the US Search Marketing Page, the US Search
`website displays a checkout with an offer to purchase subscriptions: a 5-day trial costing
`$1.99 with access to unlimited reports, with a monthly subscription costing $19.86 per
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`month thereafter.” Id. ¶ 32. Further, “[w]hile a consumer may visit either Intelius.com or
`USSearch.com hoping to search for information on one specific individual, both People
`Search Websites ultimately offer for sale an entirely different product.” Id. ¶ 33.
`“Neither Intelius.com nor USSearch.com offers for sale only a report on the searched
`individual.” Id. “Instead, the websites offer for sale a monthly subscription service that
`grants the purchaser unlimited access to background reports on anybody in the websites’
`database.” Id. “The searched for individual’s report is a small part of a large database
`with reports on millions of people.” Id. According to Plaintiffs, Defendants’ marketing
`pages “have a commercial purpose in that they promote the Defendants’ website and
`encourage potential customers to purchase paid subscriptions to access reports in their
`database.” Id. ¶¶ 60, 68.
`
`Plaintiffs “discovered that Defendants were using their identities to solicit the
`purchase of paid subscriptions to Intelius.com and USSearch.com.” Id. ¶ 39. “Plaintiffs
`never provided Defendants with their written consent (or consent of any kind) to use any
`attribute of their identities for commercial purposes, and certainly never authorized
`Defendants to use their identities to promote any of their products or services.” Id. ¶ 41.
`Additionally, “[b]eginning in at least May 2021 and continuing into after July 2021,
`Defendants specifically identified Plaintiffs by their full name, age, location, and names
`of immediate family members on the Intelius and US Search Marketing Pages.” Id. ¶ 40.
`“Defendants have never provided Plaintiffs with compensation of any kind for their use
`of Plaintiffs’ identities in connection with any advertising on Intelius, US Search, or any
`other website.” Id. ¶ 42. Further, “Plaintiffs are not and have never been customers of
`any Defendants’ websites. . . . [T]hey have no relationship with [Defendants]
`whatsoever.” Id. ¶ 43. Plaintiff Cotta is a resident of California and brings her class
`claim under California law. Id. ¶ 8. Plaintiff Camacho is a resident of Alabama and
`brings his class claim under Alabama law. Id. ¶ 7.
`
`Plaintiffs allege that “Defendants misappropriated people’s identities (individuals’
`names and other identifying information such as their age, location, and known relatives)
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`for their own commercial benefits (i.e., to market and promote a monthly subscription to
`access unlimited reports on individuals in the Intelius.com and USSearch.com database).”
`Id. ¶ 34. Plaintiffs bring two causes of action against Defendants: (1) use of Plaintiff
`Cotta’s identity in violation of California’s right of publicity statute, Cal. Civ. Code.
`§ 3344, on behalf of a California class; and (2) use of Plaintiff Camacho’s identity in
`violation of Alabama’s right of publicity statute, Ala. Code §§ 6-5-770 to -773, on behalf
`of an Alabama class. Id. ¶ 6. Defendants move to dismiss both causes of action against
`them based on the following grounds: (1) Plaintiffs must arbitrate their dispute; (2)
`Plaintiff Cotta fails to state a claim under California Civil Code § 3344; (3) Plaintiff
`Camacho fails to state a claim under the Alabama Right of Publicity Act; (4) the
`Communications Decency Act bars Plaintiffs’ claims; (5) the First Amendment bars
`Plaintiffs’ claims; (6) Plaintiffs’ liability theories violate the Dormant Commerce Clause;
`and (7) Plaintiffs’ claims are barred by California’s anti-SLAPP statute. See Doc. No.
`16-1.
`
`II. ARBITRATION
`Defendants argue Plaintiff Camacho agreed to arbitration, so the Court must direct
`
`Plaintiff Camacho to proceed to arbitration regarding his claim. Doc. No. 16-1 at 13;
`Doc. No. 19 at 6. In the alternative, Defendants request limited discovery to learn about
`Plaintiffs’ counsel’s agency authority or ratification. Doc. No. 16-1 at 16. Plaintiffs
`assert in opposition that Defendants “fail to establish Mr. Camacho agreed to arbitrate
`this dispute.” Doc. No. 17 at 11.
`A. Motion to Compel Arbitration
`
`As an initial matter, Defendants frame their request to send the case to arbitration
`as a motion under Federal Rule of Civil Procedure 12(b)(3). Doc. No. 16-1 at 13.
`Plaintiffs appear to assert that Rule 12(b)(3) is not the proper avenue to request
`enforcement of an arbitration clause. Doc. No. 17 at 11. However, Defendants’
`arguments appear akin to a motion to compel arbitration under the Federal Arbitration
`Act (“FAA”) in that they request the Court enforce an arbitration agreement and urge that
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`22-cv-209-MMA (MDD)
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`the policy favors such action. See Doc. No. 16-1 at 13–15. Further, Defendants and
`Plaintiffs both cite to cases that discuss the FAA. See id. at 15; Doc. No. 17 at 11–16;
`Doc. No. 19 at 6–7. Denying the motion in this case based purely upon the title of the
`motion would waste time as the motion itself reads as a motion to compel arbitration.
`See Lemberg v. LuLaRoe, LLC, No. ED CV 17-02102-AB (SHKx), 2018 WL 6927836,
`at *3 (C.D. Cal. Mar. 1, 2018) (“This Court finds that a motion to compel arbitration is
`akin to a motion under Rule 12, which is in line with decisions from within this Circuit
`and other Circuits. . . . While courts may disagree as to whether a motion to compel
`arbitration constitutes a motion pursuant to Rules 12(b)(1), 12(b)(3), or 12(b)(6), courts
`generally agree that such a motion is a Rule 12(b) motion.”); Balen v. Holland Am. Line
`Inc., 583 F.3d 647, 652 (9th Cir. 2009) (reviewing a 12(b)(3) motion as a motion to
`compel arbitration); Cedars-Sinai Med. Ctr. v. Glob. Excel Mgmt., Inc., No. CV 09-3627
`PSG (AJWx), 2010 WL 5572079, at *2 (C.D. Cal. Mar. 19, 2010); cf. Wabtec Corp. v.
`Faiveley Transp. Malmo AB, 525 F.3d 135, 140 (2d Cir. 2008) (declining to review a
`motion to dismiss as a motion to compel arbitration because the motion “did not
`explicitly request the district court to ‘direct that arbitration be held’” and instead framed
`the argument in judicial preclusion terms) (quoting 9 U.S.C. § 206)); Bombardier Corp.
`v. Amtrack, 333 F.3d 250, 254 (D.C. Cir. 2003) (declining to review a motion to dismiss
`as a motion to compel arbitration because the motion did not “invoke[] FAA’s policy
`favoring enforceability of arbitration agreements and ask[] the Court to order arbitration”
`and was thus not analogous to a motion to compel arbitration). Thus, the Court construes
`Defendants’ request as a motion to compel arbitration pursuant to the FAA.
`“Although the court normally cannot consider matters outside the pleadings in a
`Rule 12(b)(6) motion to dismiss, . . . it may consider such evidence in deciding a motion
`to compel arbitration.” Regents of Univ. of Cal. v. Japan Sci. & Tech. Agency, No. CV
`14-04419, 2014 WL 12690187, at *3 n.24 (C.D. Cal. Oct. 16, 2014); see also Macias v.
`Excel Bldg. Servs. LLC, 767 F. Supp. 2d 1001, 1007 (N.D. Cal. 2011) (“While the Court
`may not review the merits of the underlying case ‘[i]n deciding a motion to compel
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`22-cv-209-MMA (MDD)
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`arbitration, [it] may consider the pleadings, documents of uncontested validity, and
`affidavits submitted by either party.’” (quoting Ostroff v. Alterra Healthcare Corp., 433
`F. Supp. 2d 538, 540 (E.D. Pa. 2006))).
`Defendants attach copies of the Websites’ Terms of Service (“TOS”) and a
`declaration from The Control Group Media Company Senior Vice President of Product.
`See Doc. No. 16-2 at 2–9 (“Mahon Decl.”), 58–70 (“Exh. C”), 72–84 (“Exh. D”).
`Defendants seek to compel arbitration. Thus, the Court considers both TOS documents
`and the declaration in ruling on Defendants’ motion to compel arbitration.
`B.
`Legal Standard
`The FAA permits “[a] party aggrieved by the alleged failure, neglect, or refusal of
`another to arbitrate under a written agreement for arbitration [to] petition any United
`States district court . . . for an order directing that . . . arbitration proceed in the manner
`provided for in [the arbitration] agreement.” 9 U.S.C. § 4. Upon a showing that a party
`has failed to comply with a valid arbitration agreement, the district court must issue an
`order compelling arbitration. Id. The Supreme Court has stated that the FAA espouses a
`general policy favoring arbitration agreements. AT&T Mobility LLC v. Concepcion, 563
`U.S. 333, 339 (2011). Federal courts are required to rigorously enforce an agreement to
`arbitrate. See id.
`In determining whether to compel a party to arbitration, the Court may not review
`the merits of the dispute; rather, the Court’s role under the FAA is limited to determining
`“(1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the
`agreement encompasses the dispute at issue.” Kilgore v. KeyBank, Nat. Ass’n, 718 F.3d
`1052, 1058 (9th Cir. 2013) (quoting Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207
`F.3d 1126, 1130 (9th Cir. 2000)); see also 9 U.S.C. § 4. If the Court finds that the
`answers to both questions are “yes,” then the Court must compel arbitration. Chiron
`Corp., 207 F.3d at 1130. A court’s circumscribed role in making these inquiries “leav[es]
`the merits of the claim and any defenses to the arbitrator.” Id. (quoting Republic of
`Nicaragua v. Standard Fruit Co., 937 F.2d 469, 478 (9th Cir. 1991)).
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`As to the first inquiry—whether the parties agreed to arbitrate—courts adopt a
`standard similar to summary judgment. See Three Valleys Mun. Water Dist. v. E.F.
`Hutton & Co., 925 F.2d 1136, 1141 (9th Cir. 1991); Lopez v. Terra’s Kitchen, LLC, 331
`F. Supp. 3d 1092, 1097 (S.D. Cal. 2018); Cordas v. Uber Techs., Inc., 228 F. Supp. 3d
`985, 988 (N.D. Cal. 2017). Agreements to arbitrate are “valid, irrevocable, and
`enforceable, save upon such grounds as exist at law or in equity for the revocation of any
`contract.” 9 U.S.C. § 2. Courts must apply ordinary state law principles governing
`formation of a contract in determining whether to invalidate an agreement to arbitrate.
`Ferguson v. Countrywide Credit Indus., Inc., 298 F.3d 778, 782 (9th Cir. 2002) (quoting
`First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). As such, arbitration
`agreements may be “invalidated by ‘generally applicable contract defenses, such as fraud,
`duress, or unconscionability.’” Concepcion, 563 U.S. at 339 (quoting Doctor’s Assocs.,
`Inc. v. Casarotto, 517 U.S. 681, 687 (1996)). In assessing whether there is an agreement
`to arbitrate, the presumption and policy in favor of arbitration do not apply, and instead,
`the issue is determined through standard contract law principles. See Comer v. Micor,
`Inc., 436 F.3d 1098, 1104 n.11 (9th Cir. 2006); see also EEOC v. Waffle House, Inc., 534
`U.S. 279, 293 (2002). Additionally, the party “seeking to compel arbitration ‘bears the
`burden of proving the existence of a valid arbitration agreement by preponderance of the
`evidence.’” Sellers v. JustAnswer LLC, 289 Cal. Rptr. 3d 1, 13 (Ct. App. 2021) (quoting
`Engalla v. Permanente Med. Grp., Inc., 938 P.2d 903, 915 (1997)).
`As to the second inquiry—whether the agreement encompasses the dispute at
`issue—courts resolve any “ambiguities as to the scope of the arbitration clause itself . . .
`in favor of arbitration.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior
`Univ., 489 U.S. 468, 475–76 (1989); see also Moses H. Cone Mem’l Hosp. v. Mercury
`Constr. Corp., 460 U.S. 1, 24–25 (1983) (“[A]ny doubts concerning the scope of
`arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is
`the construction of the contract language itself or an allegation of waiver, delay, or a like
`defense to arbitrability.”). Moreover, “the party resisting arbitration bears the burden of
`
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`proving that the claims at issue are unsuitable for arbitration.” Green Tree Fin. Corp.-
`Ala. v. Randolph, 531 U.S. 79, 91 (2000). Absent contractual ambiguity, “it is the
`language of the contract that defines the scope of disputes subject to arbitration.” Waffle
`House, Inc., 534 U.S. at 289.
`C. Discussion
`Defendants argue the Court should compel Plaintiff Camacho to arbitrate his claim
`pursuant to the arbitration agreement contained within the Websites’ TOS. Doc. No. 16-
`1 at 13–15. Defendants further their argument by explaining “[t]o perform a search on
`the Websites, a user must click a button, below which appears a message indicting that
`clicking constitutes affirmative consent to the applicable [TOS].” Id. at 13 (citing Exhs.
`C, D). The TOS, in relevant part, provide that any disputes shall be resolved by
`arbitration. Id.; see also Exh. C at 67–69; Exh. D at 81–83. While acting as Plaintiff
`Camacho’s agents, Defendants claim that Plaintiff Camacho’s counsel agreed to
`Defendants’ TOS, thereby binding Plaintiff Camacho to the Websites’ TOS that included
`arbitration agreements. See Doc. No. 16-1 at 13–14. Specifically, Defendants assert that
`Plaintiff Camacho “is bound to the TOS, including the agreement to arbitrate” because
`counsel’s search of Plaintiff Camacho’s name was “within the scope of [Plaintiff]
`Camacho’s counsel’s agency,” Plaintiff Camacho ratified the agreement, and but for
`Plaintiff Camacho’s counsel’s search, there would have been no basis for a claim. Id. at
`14–15.
`Plaintiffs respond by challenging a signatory’s ability to bind a nonsignatory—
`here, Plaintiff Camacho—to an arbitration agreement. Doc. No. 17 at 12. Plaintiffs
`assert that there is no evidence that counsel intended to act on behalf of Plaintiff
`Camacho, when agreeing to the TOS, and bound him to the TOS or whether counsel even
`had authority to do so. Id. at 12–14. Plaintiffs further argue that “attorneys regularly
`engage service providers while investigating and prosecuting cases for clients, and when
`they do so, it is the lawyers—not the clients—who are bound to any resulting
`agreements.” Id. at 13. Finally, Plaintiffs contend that counsel used the Websites “to
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`satisfy his Rule 11 obligations by investigating Mr. Camacho’s claim before filing the
`lawsuit, an elementary professional duty—not a basis to compel arbitration.” Id. at 13.
`The Court proceeds by assessing whether a valid arbitration agreement exists and
`whether it encompasses the dispute at issue. See Kilgore, 718 F.3d at 1058 (quoting
`Chiron Corp., 207 F.3d at 1130).
`1. Whether a Valid Arbitration Agreement Exists
`a. Governing State Law
`The first factor in assessing whether to compel arbitration requires the Court to
`apply ordinary state law principles of contract formation. See Ferguson, 298 F.3d at 782.
`A district court sitting in diversity must apply the choice-of-law rules of the forum
`state. Lazar v. Kroncke, 862 F.3d 1186, 1194 (9th Cir. 2017). In the present action, the
`issue concerns whether a nonsignatory is bound by the TOS, so the Court is unable to
`consider any choice-of-law provision in the arbitration agreement should one exist. See
`In re Henson, 869 F.3d 1052, 1059 (9th Cir. 2017) (“A choice-of-law clause, like an
`arbitration clause, is a contractual right and generally may not be invoked by one who is
`not a party to the contract in which it appears.” (quoting Paracor Fin., Inc. v. Gen. Elec.
`Capital Corp., 96 F.3d 1151, 1165 (9th Cir. 1996))); Nguyen v. Barnes & Noble Inc., 763
`F.3d 1171, 1175 (9th Cir. 2014) (supplying that whether a choice-of-law provision
`applies depends upon whether the parties had agreed to being bound by the contract in
`which it appears). Thus, the Court must apply the choice-of-law principles of the forum
`state—California—to determine which state’s law will govern the agency issue as it
`relates to the arbitration agreement. In re Henson, 869 F.3d at 1059. Pursuant to
`California’s choice-of-law analysis, the Court only applies another state’s law if a
`proponent identifies an “applicable rule of law in each potentially concerned state” that
`“materially differs from the law of California.” Wa. Mut. Bank, FA v. Superior Court, 15
`P.3d 1071, 1080 (Cal. 2001).
`Here, both Plaintiffs and Defendants cite to California and Alabama case law
`concerning the issue of agency as it relates to arbitration agreements. See, e.g., Doc. No.
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`16-1 at 14; Doc. No. 17 at 13–15; Doc. No. 19 at 7. However, the parties primarily rely
`on California law. See Doc. No. 16-1 at 14–15; Doc. No. 17 at 13–15. In fact, Plaintiffs
`state “[t]here is no material difference between California and Alabama law” on this
`issue. Doc. No. 17 at 14. And Defendants cite to both California and Alabama cases to
`support each of their points. Doc. No. 16-1 at 14–15. Most importantly, neither party
`argues that Alabama agency principles materially differ from those in California, and
`Plaintiffs point out that “Defendants have not attempted to, and cannot, demonstrate a
`material difference between California and Alabama law.” Doc. No. 17 at 12. Therefore,
`the Court looks to California state law principles to determine whether Plaintiff
`Camacho—as a nonsignatory—is bound to the arbitration agreements. See In re Henson,
`869 F.3d at 1059–60.
`b.
`Nonsignatory-Principal and Signatory-Agent
`Through Defendant TCG’s Senior Vice President of Product, Defendants put forth
`evidence to show that Plaintiff Camacho’s counsel performed searches on the Websites
`“to generate screenshots used in his Complaint” and thereby agreed to the TOS. Mahon
`Decl. at 5–6; Doc. No. 16-1 at 13. Defendants argue that Plaintiff Camacho’s counsel is
`his agent and acquiring screenshots to include in a complaint is within the scope of
`counsel’s agency, so Plaintiff Camacho is bound by the TOS and the arbitration
`agreement contained therein. Doc. No. 16-1 at 14. Defendants additionally assert that
`even if Plaintiff Camacho’s counsel acted without authority, Plaintiff Camacho is still
`bound by the TOS because he ratified the agreement when he “incorporat[ed] into the
`Complaint information and screenshots gathered by counsel from the Websites.” Id. at
`15. Finally, Defendants appear to assert that but for counsel searching Plaintiff
`Camacho’s name, a claim would not have existed. Id. Plaintiffs respond that “litigants
`cannot be compelled to arbitrate disputes that they did not agree to arbitrate,” Defendants
`do not argue Plaintiff Camacho agreed to arbitration by agreeing to the TOS himself, and
`a nonsignatory is not generally bound to an arbitration agreement. Doc. No. 17 at 11–12.
`Plaintiffs further assert that the intent of Plaintiff Camacho’s counsel is critical as to
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`whether an undisclosed principal becomes a party to a contract when the principal lacked
`intent to bind the agent, and counsel lacked such intent to bind Plaintiff Camacho. See id.
`at 12. Rather, counsel’s purpose in using the Websites was to fulfill his Rule 11
`obligations. Id. Finally, Plaintiffs notes that “absent a client’s express authorization to
`agree to arbitration—of which there is no evidence here—”counsel has no apparent
`authority to bind a client to an arbitration agreement simply by virtue of his
`representation. Id. at 14 (quoting Blanton v. Womancare, Inc., 696 P.2d 645, 649 (Cal.
`1985)). To this point, Plaintiff Camacho could not have ratified his counsel’s actions,
`and even if he could, there is no evidence that he did. Id. at 15–16.
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`“[A] litigant who is not a party to an arbitration agreement may invoke arbitration
`under the FAA if the relevant state contract law allows the litigant to enforce the
`agreement.” Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1128 (9th Cir. 2013) (citing
`Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 632 (2009)). Nonsignatories “of
`arbitration agreements may be bound by the agreement under ordinary contract and
`agency principles.” Comer, 436 F.3d at 1101 (quoting Letizia v. Prudential Bache Sec.,
`Inc., 802 F.2d 1185, 1187–88 (9th Cir. 1986)). However, under California law, an
`agency relationship does not guarantee that a nonsignatory will be bound to an arbitration
`agreement. Cohen v. TNP 2008 Participating Notes Program, LLC, 243 Cal. Rptr. 3d
`340, 356 (Ct. App. 2019). Each California case that has found nonsignatories were
`“bound to arbitrate is based on facts that demonstrate, in one way or another, the
`signatory’s implicit authority to act on behalf of the nonsignatory.” Jensen v. U-Haul Co.
`of Cal., 226 Cal. Rptr. 3d 797, 804 (Ct. App. 2017); see County of Contra Costa v. Kaiser
`Found. Health Plan, Inc., 54 Cal. Rptr. 2d 628, 632 (Ct. App. 1996). Further, courts
`have found that an “agency relationship between the nonsignatory and the signatory must
`make it ‘equitable to compel the nonsignatory’ to arbitrate.” Cohen, 243 Cal. Rptr. 3d at
`359 (quoting Jensen, 226 Cal. Rtpr. 3d at 802); see also Matthau v. Superior Court, 60
`Cal. Rptr. 3d 93, 97–98 (Ct. App. 2007); County of Contra Costa, 54 Cal. Rptr. 2d at
`631–32.
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`Here, the Court finds that there is no dispute Plaintiff Camacho’s counsel is his
`agent. See Blanton, 696 P.2d at 649 (“As a general proposition the attorney-client
`relationship, insofar as it concerns the authority of the attorney to bind his client by
`agreement or stipulation, is governed by the principles of agency.” (citing Fidelity & Cas.
`Co. of N.Y. v. Abraham, 161 P.2d 689, 693 (Ct. App. 1945))); Callahan v.
`PeopleConnect, Inc. (Callahan I), No. 20-cv-09203-EMC, 2021 WL 1979161, at *1
`(N.D. Cal. May 18, 2021), aff’d, No. 21-16040, 2022 WL 823594, *1 (9th Cir. Mar. 18,
`2022). The matter thus turns on the scope of counsel’s authority. Defendants carry the
`“burden to prove the scope of counsel’s authority.” Callahan I, 2021 WL 1979161, at *4
`(citing Inglewood Teachers Ass’n v. Pub. Emp’t Relations Bd., 278 Cal. Rptr. 228, 234–
`35 (Ct. App. 1991)); see also Ellerd v. County of Los Angeles, 273 Fed. App’x 669, 670
`(9th Cir. 2008).
`The Court notes that an identical case, brought against a similar company
`associated with one of Defendants and that is represented by the same defense counsel,
`was previously filed in the Northern District of California. See Callahan I, 2021 WL
`1979161, at *1.3 In Callahan I, the defendants brought a motion to compel arbitration
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`3 Another similar case is currently pending in the Western District of Washington. See Knapke v.
`PeopleConnect, Inc., 553 F. Supp. 3d 865 (W.D. Wash. 2021), vacated, No. 21-35690, 2022 WL
`2336657, at *1 (9th Cir. June 29, 2022). Defendants provided the Court with supplemental authority
`concerning a Ninth Circuit opinion published in this case. See Doc. No. 22. However, the Court finds
`this case is analogous to Callahan I rather than Knapke because California law applies on the issue of
`agency. In Knapke, the Ninth Circuit vacated the district court’s denial of the defendants’ motion to
`compel arbitration and remanded because under Washington law “[i]t is unclear whether [the plaintiffs]
`had an attorney-client relationship, and thus an agent-principal relationship, when [counsel] agreed to
`the Terms of Service.” Knapke v. PeopleConnect, Inc., No. 21-35690, 2022 WL 2336657, at *4 (9th
`Cir. June 29, 2022). However, the law in California concerning attorney-client relationships, agency,
`and authority to bind a client to an arbitration agreement is not unclear—Blanton addressed the very
`issue of counsel’s scope of authority regarding arbitration agreements. The district court’s denial of the
`defendants’ motion to compel arbitration in Callahan I was affirmed by the Ninth Circuit, albeit in an
`unpublished opinion, on the grounds that the plaintiffs’ counsel lacked authority to bind their clients and
`the plaintiffs did not ratify the agreement. Callahan, 2022 WL 823594, at *1. Further, it is unclear
`whether the court’s holding applying Washington law in Knapke is binding on this Court that applies
`California law.
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`with the same argument that the plaintiffs’ attorney bound the client to an arbitra