United States District Court, N.D. California
ORDER COMPELLING ARBITRATION AND STAYING ACTION RE:
DKT. NO. 24
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
Zumper, Inc.'s (âZumperâ) 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.
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.
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.
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.
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.
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.
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:
Coyne Decl. ¶¶ 11-12 (the phrases "Terms and
In" are in blue, and are readily recognizable as
blue phrase "Terms and Conditions" linked to
www.zumper.com/terms-of-use. 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,
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.
Agreement later included the following provision, at Section
14 (entitled “Arbitration and Dispute
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 www.adr.org.) 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.
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.
Motion to ...