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Gonzalez-Torres v. Zumper, Inc.

United States District Court, N.D. California

December 2, 2019

ZUMPER, INC., Defendant.



         Defendant Zumper, Inc.'s (“Zumper”) motion to compel arbitration and stay proceedings came on for hearing before this court on October 23, 2019. Plaintiff appeared through his counsel, Erika Heath. Defendant appeared through its counsel, David Goldstein and John Shope. Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motion, for the following reasons.


         On April 23, 2019, plaintiff Luis Armando Gonzalez-Torres filed a class-action complaint against Zumper, originating this action. Compl., Dkt. 1. Zumper operates a website that enables prospective renters to search and apply for apartment rentals, and allows landlords and realtors to evaluate and communicate with prospective tenants. Plaintiff signed up for and used the website as a prospective renter looking for an apartment to rent.

         The complaint asserts seven causes of action: (1) violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681e(b), for failing to follow reasonable procedures to assure the maximum possible accuracy of the information it reported about prospective renters when preparing reports about them; (2) violation of California Consumer Credit Reporting Agencies Act (“CCRAA”), Cal. Civ. Code § 1785.14(b), based on the same conduct; (3) violation of FCRA, 15 U.S.C. § 1681i(a)(1)(A), for failing to conduct a reasonable reinvestigation to determine whether plaintiff's disputes about inaccuracies in his record were accurate, or delete the disputed item within 30 days; (4) violation of CCRAA, Cal. Civ. Code § 1785.16(a), based on the same conduct; (5) violation of FCRA, 15 U.S.C. § 1681j(f), for charging plaintiff more than the maximum allowable amount to disclose all information in plaintiff's Zumper file; (6) violation of FCRA, 15 U.S.C. § 1681g(a)(2), for failure to disclose to plaintiff the sources of the public record information it includes in the Zumper file; and (7) violation of CCRAA, Cal. Civ. Code § 1785.18(a), for the same conduct. See Compl.

         On June 17, 2019, Zumper filed the present motion to compel arbitration and stay the action. Dkt. 24. Zumper argues that plaintiff and Zumper entered into an enforceable arbitration agreement encompassing plaintiff's claims when plaintiff created a Zumper account.

         Gonzalez-Torres alleges that on or about February 27, 2018, he accessed Zumper's website and submitted a rental application. Compl. ¶¶ 34-38. Zumper's records align with that allegation and indicate that an individual with the name Luis Gonzalez created an account on February 27, 2018, and then submitted a rental application, including credit, criminal history, and eviction reports to a realtor. Declaration of Brian Coyne, Dkt. 24-1 (“First Coyne Decl.”) ¶¶ 19-24.

         Gonzalez-Torres alleges that Zumper published a consumer report that erroneously associated him with criminal offenses of an individual named Luis Raymond Gonzalez. Compl. ¶¶ 40, 43. Gonzalez-Torres alleges that this error was the result of Zumper's having used “very loose matching criteria” in preparing the report. Id. ¶ 44. Gonzalez-Torres alleges that his rental applications were denied and that the inaccuracy was a “substantial factor” in the denial. Id. ¶¶ 45-46. He further alleges that he contacted Zumper to dispute the entry on his criminal history report, but that he did not receive an adequate response, ]d. ¶¶ 48, 52-59.

         A prospective Zumper user attempting to rent an apartment would begin the process by creating a Zumper account. Before doing so, the user views a notice informing him that by creating an account, he accepts Zumper's "Terms and Conditions." That phrase "Terms and Conditions" is a blue hyperlink. Neither party disputes these facts, nor that plaintiff viewed a screen with these elements before creating his account. See, e.g., First Coyne Decl. ¶¶ 4-17; Reply at 4 ("when a consumer such as Mr. Gonzalez-Torres creates a Zumper account" he does not agree to the linked-to document); Declaration of Maria Battle, Dkt. 32-1 ("Battle Decl.") ¶ 3 (plaintiffs witness describing website functioning after clicking "Create an account"). The screen looked approximately like this:

         (Image Omitted)

         First Coyne Decl. ¶¶ 11-12 (the phrases "Terms and Conditions," "Privacy Policy," and "Sign In" are in blue, and are readily recognizable as hyperlinks).

         The blue phrase "Terms and Conditions" linked to First Coyne Decl. ¶ 17. That document, as displayed at the relevant time (February 27, 2018), presented with a heading entitled “Terms of Use.” Id. ¶¶ 36-39 & Ex. C (Exhibit C, filed at Dkt. 24-4, is the “Agreement”) at ECF p. 2. Following that title, the first paragraph stated in part: “These terms of use are entered into by and between you and Zumper. The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the ‘Agreement'), govern your access to and use of the Website and the Services, whether as a guest or a registered user.” Agreement at ECF p. 2.

         The Agreement later included the following provision, at Section 14 (entitled “Arbitration and Dispute Resolution”):

All disputes arising out of or relating to this Agreement, the Website or the Services shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect (for information on the AAA and its rules, see and the further procedures set forth herein, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. The arbitration shall be conducted in San Francisco, California, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. . . .

Id. § 14.

         Subsequent to the account creation process, other materials were presented to the website's users. For example, the parties agree that to the extent a user was initially directed to Zumper to create an account from a realtor's referral link, after finishing the account creation process described above he would be presented with a pop-up screen entitled “Terms and Conditions, ” which displayed terms and conditions that a user agreed to “[b]y using Zumper[.]” Third Declaration of Brian Coyne, Dkt. 39 (“Third Coyne Decl.”) ¶¶ 10 & 15; Declaration of Luis Armando Gonzalez-Torres, Dkt. 26-2 (“Gonzalez-Torres Decl.”) ¶¶ 2-4. Plaintiff alleges that he was directed to create an account with Zumper through a realtor's referral link, and as such after creating an account he was presented with that “Terms and Conditions” pop-up screen. Compl. ¶¶ 34-36; Battle Decl. ¶ 3; Third Coyne Decl. ¶ 15.


         A. Legal Standard

         1. Motion to ...

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