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Michele Floyd (SBN 163031)
mfloyd@srclaw.com
Adrianna A. Rubino (SBN 300951)
arubino@srclaw.com
SACKS, RICKETTS & CASE LLP
177 Post Street, Suite 650
San Francisco, CA 94108
Tel: 415-549-0580 AUG 2 } au
Fax: 415-549-0640 “eee a
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Attorneys for Defendant 1__$ stil. See eat
Airbnb, Inc. :
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOHN KEFFER; DEBRA KEFFER; DUANE CASE NO. CGC-20-584437
ROBINSON; and DUANA HAMILTON,
: |] ORDER GRANTING
Plaintiffs, DEFENDANT AIRBNB, INC.’S
MOTION TO COMPEL
vo, ARBITRATION AS TO DEBRA
KEFFER, DUANA HAMILTON, AND
AITRBNB, INC., a Delaware Corporation, and DUANE ROBINSON; GRANTING
DOES ONE thro FIFTY, i ive,
through FIFTY, inclusive KEFFER; AND OVERRULING
Defendants. DEMURRER
Complaint Filed: May 13, 2020
[PROPOSED] ORDER GRANTING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL ARBITRATION
AS TO DEBRA KEFFER, DUANA HAMILTON, AND DUANE ROBINSON; GRANTING MOTION TO
STAY AS TO JOHN KEFFER; AND OVERRULING DEMURRER; CASE NO. CGC-20-584437
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Defendant’s motion to compel arbitration is granted as to Debra Keffer, Duana Hamilton,
and Duane Robinson, and motion to stay is granted as to John Keffer. Defendant’s demurrer is
overruled.
1. Arbitration
A court is only required to compel “if it determines that an agreement to arbitrate the
controversy exists ....” CCP § 1281.2. “[I]t is a cardinal principle that arbitration under the
FAA is a matter of consent, not coercion ... Thus, a party cannot be required to submit to
arbitration any dispute which he has not agreed so to submit.” Pinnacle Museum Town Assn. v.
Pinnacle Market Develop. (US), LLC (2012) 55 Cal. 4th 223, 236. Plaintiffs do not oppose
arbitration of D. Keffer, Hamilton, and Robinson’s claim.
However, J. Keffer did not sign an arbitration agreement with Defendant, and Defendant
may not bind 5. Keffer through D. Keffer.
Defendant does not provide authority that where a spousal relationship in effect creates
an agreement to arbitrate. “The California cases binding nonsignatories to arbitrate their claims
fall into two categories. In some cases, a nonsignatory was required to arbitrate a claim because
a benefit was conferred on the nonsignatory as a result of the contract ... In other cases, the
nonsignatory was bound to arbitrate the dispute because a preexisting relationship existed
between the nonsignatory and one of the parties to the arbitration agreement, making it equitable
to compel the nonsignatory to also be bound to arbitrate his or her claim.” County of Contra
Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal. App. 4th 237, 242. The cases
Defendant relies on generally involve CCP § 1295, arbitration clauses that also extended to heirs
or spouses, and group health plans that included the wrongful death beneficiaries. See Hawkins v|
Superior Court (1979) 89 Cal. App. 3d 413, 416-419 [A spouse must arbitrate a wrongful death
claim when his or her decedent spouse applied for health insurance for both of them and the
application contained an arbitration clause; Herbert v. Superior Court (1985) 169 Cal. App. 3d
718, 722-727 [The wrongful death claims of nonsignatory adult heirs of a group health plan
member must be arbitrated if the member agreed to arbitrate his or her heirs' claims]. Chan v.
2
[PROPOSED] ORDER GRANTING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL ARBITRATION
AS TO DEBRA KEFFER, DUANA HAMILTON, AND DUANE ROBINSON; GRANTING MOTION TO.
STAY AS TO JOHN KEFFER; AND OVERRULING DEMURRER; CASE NO. CGC-20-584437Charter Comm. Holding Co., 2015 WL 12655701, involves the irrelevant context of a cable
provider’s arbitration clause.
Defendant’s reliance on Herbert is unconvincing, as courts have identified its holding as
relating to circumstances not present here. Baker v. Birnbaum (1988) 202 Cal. App. 3d 288, 293
[*The Herbert court reasoned that the decedent had the implied authority to bind his wife and
minor children to the arbitration clause contained in his group medical coverage based on their
fiduciary relationship and his right and duty to provide for their medical care.”]; Daniels v.
Sunrise Senior Living, Inc. (2013) 212 Cal. App. 4th 674, 685-686 [“Ruiz and Herbert are
distinguishable because they involved arbitration agreements governed by and entered into
pursuant to section 1295. In our view, this is the critical distinction between Herbert and Ruiz
and the present case”].
A serious problem, however, is posed by allowing arbitration to proceed as well as
parallel state court proceedings. It may be that the problem cannot be solved:
When the FAA applies, it preempts any contrary state law and is binding on state as well
as federal courts. (Southland Corp. v. Keating (1984) 465 U.S. 1, 10-16, 104 S.Ct. 852, 79
L.Ed.2d 1; Rosenthal, at p. 406, 58 Cal.Rptr.2d 875, 926 P.2d 1061.) The FAA requires courts
to enforce arbitration provisions. (9 U.S.C., § 2.) It does not authorize courts to stay arbitration
pending resolution of litigation, or to refuse to enforce a valid arbitration provision to avoid
duplicative proceedings or conflicting rulings.
Mastick v. TD Ameritrade, Inc., 209 Cal. App. 4th 1258, 1263 (2012). The parties should!
confer to see if they can agree on a means to eliminate the friction between the two proceedings.
2. Demurrer
Defendant’s demurrer is overruled. “No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information provided by another
information content provider.” (47 U.S.C. § 230(c)(1).) Plaintiffs’ allegations concern
information Airbnb provided, not a third party, including its assertion that “[e]very experience
submitted to Airbnb” is reviewed “to make sure it” meets standards of “expertise, insider access,
3
[PROPOSED] ORDER GRANTING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL ARBITRATION
AS TO DEBRA KEFFER, DUANA HAMILTON, AND DUANE ROBINSON; GRANTING MOTION TO
STAY AS TO JOHN KEFFER; AND OVERRULING DEMURRER; CASE NO. CGC-20-584437Cem ND HW FF WN
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and connection” and that “Airbnb failed to properly screen” in this situation. (Compl. { 15-16.)
Dated: Ds @__, 2020 A
. Honorable Gdirtis E. Karnow
Judge, Superior Court, County of San Francisco
4
[PROPOSED] ORDER GRANTING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL ARBITRATION
AS TO DEBRA KEFFER, DUANA HAMILTON, AND DUANE ROBINSON; GRANTING MOTION TO
STAY AS TO JOHN KEFFER; AND OVERRULING DEMURRER; CASE NO. CGC-20-584437
Preview
e Ce ND HW BF WN YN YY NN NY NY ND SS Be Be Be Be Be Be eB old AA FF BH F&F SOM HRA HA BF wWwNH KS Michele Floyd (SBN 163031) mfloyd@srclaw.com Adrianna A. Rubino (SBN 300951) arubino@srclaw.com SACKS, RICKETTS & CASE LLP 177 Post Street, Suite 650 San Francisco, CA 94108 Tel: 415-549-0580 AUG 2 } au Fax: 415-549-0640 “eee a aK Be Tette GetAT A Attorneys for Defendant 1__$ stil. See eat Airbnb, Inc. : SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOHN KEFFER; DEBRA KEFFER; DUANE CASE NO. CGC-20-584437 ROBINSON; and DUANA HAMILTON, : |] ORDER GRANTING Plaintiffs, DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL vo, ARBITRATION AS TO DEBRA KEFFER, DUANA HAMILTON, AND AITRBNB, INC., a Delaware Corporation, and DUANE ROBINSON; GRANTING DOES ONE thro FIFTY, i ive, through FIFTY, inclusive KEFFER; AND OVERRULING Defendants. DEMURRER Complaint Filed: May 13, 2020 [PROPOSED] ORDER GRANTING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL ARBITRATION AS TO DEBRA KEFFER, DUANA HAMILTON, AND DUANE ROBINSON; GRANTING MOTION TO STAY AS TO JOHN KEFFER; AND OVERRULING DEMURRER; CASE NO. CGC-20-584437 cK.Cem YN DAH BF WwW HN RYN NN NN N NY NY Be ee Be Be eB Be ew Be ed AaA BF BH SF SOM NAA FF wBWwNH FS Defendant’s motion to compel arbitration is granted as to Debra Keffer, Duana Hamilton, and Duane Robinson, and motion to stay is granted as to John Keffer. Defendant’s demurrer is overruled. 1. Arbitration A court is only required to compel “if it determines that an agreement to arbitrate the controversy exists ....” CCP § 1281.2. “[I]t is a cardinal principle that arbitration under the FAA is a matter of consent, not coercion ... Thus, a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Pinnacle Museum Town Assn. v. Pinnacle Market Develop. (US), LLC (2012) 55 Cal. 4th 223, 236. Plaintiffs do not oppose arbitration of D. Keffer, Hamilton, and Robinson’s claim. However, J. Keffer did not sign an arbitration agreement with Defendant, and Defendant may not bind 5. Keffer through D. Keffer. Defendant does not provide authority that where a spousal relationship in effect creates an agreement to arbitrate. “The California cases binding nonsignatories to arbitrate their claims fall into two categories. In some cases, a nonsignatory was required to arbitrate a claim because a benefit was conferred on the nonsignatory as a result of the contract ... In other cases, the nonsignatory was bound to arbitrate the dispute because a preexisting relationship existed between the nonsignatory and one of the parties to the arbitration agreement, making it equitable to compel the nonsignatory to also be bound to arbitrate his or her claim.” County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal. App. 4th 237, 242. The cases Defendant relies on generally involve CCP § 1295, arbitration clauses that also extended to heirs or spouses, and group health plans that included the wrongful death beneficiaries. See Hawkins v| Superior Court (1979) 89 Cal. App. 3d 413, 416-419 [A spouse must arbitrate a wrongful death claim when his or her decedent spouse applied for health insurance for both of them and the application contained an arbitration clause; Herbert v. Superior Court (1985) 169 Cal. App. 3d 718, 722-727 [The wrongful death claims of nonsignatory adult heirs of a group health plan member must be arbitrated if the member agreed to arbitrate his or her heirs' claims]. Chan v. 2 [PROPOSED] ORDER GRANTING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL ARBITRATION AS TO DEBRA KEFFER, DUANA HAMILTON, AND DUANE ROBINSON; GRANTING MOTION TO. STAY AS TO JOHN KEFFER; AND OVERRULING DEMURRER; CASE NO. CGC-20-584437Charter Comm. Holding Co., 2015 WL 12655701, involves the irrelevant context of a cable provider’s arbitration clause. Defendant’s reliance on Herbert is unconvincing, as courts have identified its holding as relating to circumstances not present here. Baker v. Birnbaum (1988) 202 Cal. App. 3d 288, 293 [*The Herbert court reasoned that the decedent had the implied authority to bind his wife and minor children to the arbitration clause contained in his group medical coverage based on their fiduciary relationship and his right and duty to provide for their medical care.”]; Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal. App. 4th 674, 685-686 [“Ruiz and Herbert are distinguishable because they involved arbitration agreements governed by and entered into pursuant to section 1295. In our view, this is the critical distinction between Herbert and Ruiz and the present case”]. A serious problem, however, is posed by allowing arbitration to proceed as well as parallel state court proceedings. It may be that the problem cannot be solved: When the FAA applies, it preempts any contrary state law and is binding on state as well as federal courts. (Southland Corp. v. Keating (1984) 465 U.S. 1, 10-16, 104 S.Ct. 852, 79 L.Ed.2d 1; Rosenthal, at p. 406, 58 Cal.Rptr.2d 875, 926 P.2d 1061.) The FAA requires courts to enforce arbitration provisions. (9 U.S.C., § 2.) It does not authorize courts to stay arbitration pending resolution of litigation, or to refuse to enforce a valid arbitration provision to avoid duplicative proceedings or conflicting rulings. Mastick v. TD Ameritrade, Inc., 209 Cal. App. 4th 1258, 1263 (2012). The parties should! confer to see if they can agree on a means to eliminate the friction between the two proceedings. 2. Demurrer Defendant’s demurrer is overruled. “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (47 U.S.C. § 230(c)(1).) Plaintiffs’ allegations concern information Airbnb provided, not a third party, including its assertion that “[e]very experience submitted to Airbnb” is reviewed “to make sure it” meets standards of “expertise, insider access, 3 [PROPOSED] ORDER GRANTING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL ARBITRATION AS TO DEBRA KEFFER, DUANA HAMILTON, AND DUANE ROBINSON; GRANTING MOTION TO STAY AS TO JOHN KEFFER; AND OVERRULING DEMURRER; CASE NO. CGC-20-584437Cem ND HW FF WN RYN NY NY NY N NN DN HS Bee Be ew Be ewe ee oI AA FF BH = SO we AA A BF WH FO and connection” and that “Airbnb failed to properly screen” in this situation. (Compl. { 15-16.) Dated: Ds @__, 2020 A . Honorable Gdirtis E. Karnow Judge, Superior Court, County of San Francisco 4 [PROPOSED] ORDER GRANTING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL ARBITRATION AS TO DEBRA KEFFER, DUANA HAMILTON, AND DUANE ROBINSON; GRANTING MOTION TO STAY AS TO JOHN KEFFER; AND OVERRULING DEMURRER; CASE NO. CGC-20-584437