An arbitration clause which provided that the arbitrator was to decide all disputes, including those concerning enforceability, revocability, validity, interpretation or application of the arbitration clause itself clearly and unmistakably delegated arbitrability issues to the arbitrator, not the court. And it was not in conflict with a venue provision of the contract which chose courts in San Francisco, since even when a dispute is arbitrated, judicial relief may be required, for example to confirm the award, and the venue provision dealt with this situation. The delegation of arbitrability questions to the arbitrator was not unconscionable because drivers had the chance to opt out of arbitration altogether if they notified Uber of that choice within 30 days of signing the agreement. The arbitration agreement’s waiver of the right to bring representative PAGA suits was unconscionable, but severable. Following Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, this decision concludes that the complaint’s boilerplate allegation that a non-signatory defendant was the agent of the party that signed an arbitration clause with plaintiff does not give the supposed agent the right to compel arbitration, particularly when, as was true here, the allegedly wrongful conduct of the supposed agent was not closely connected with the signer’s conduct on which the claims against it were based.
Ninth Circuit Court of Appeals (Clifton, J.); September 7, 2016; 2016 WL 4651409