Filed 11/4/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
DOVE A. BOGGUESS et al.,
Plaintiffs and Respondents, A174376
v. (San Francisco City & County
UBER TECHNOLOGIES, INC., Super. Ct. No. CGC-24-620811)
Defendant and Appellant.
Plaintiffs and respondents Dove A. Bogguess and Douglas John
Marrone (plaintiffs) use defendant and appellant Uber Technologies, Inc.’s
(Uber) smartphone rideshare application. Plaintiffs brought this putative
class action under California’s unfair competition law (UCL) (Bus. & Prof.
Code, § 17200 et seq.) and false advertising law (FAL) (Bus. & Prof. Code,
§ 17500 et seq.) alleging Uber employed a deceptive pricing scheme. They
contend that, pursuant to this scheme, Uber “advertises that the price it
shows consumers on its ride-sharing application is ‘the price [the consumer
will] pay at the end of the ride,’ ” but, in fact, the price displayed is only “ ‘an
estimate’ ” and Uber “frequently” charges more than the displayed price.
Plaintiffs seek to enjoin Uber from, among other things, “advertising prices
that are lower than the prices consumers will actually pay” and to obtain
restitution and/or disgorgement of the amounts plaintiffs and class members
allegedly paid in excess of the displayed price.
1
Uber moved to compel arbitration of plaintiffs’ claims pursuant to its
terms of use (Agreement), which requires users to arbitrate disputes
with Uber on an individual basis. The Agreement includes a class action
waiver that bars plaintiffs from seeking public injunctive relief in any forum,
in violation of McGill v. Citibank, N.A. (2017) 2 Cal.5th 945 (McGill). The
Agreement also provides that, if the waiver is unenforceable, “any class,
collective, coordinated, consolidated, and/or representative claims subject to
the unenforceable or unlawful” waiver “shall proceed in a court of competent
jurisdiction.” The trial court denied Uber’s motion to compel arbitration,
concluding that plaintiffs seek public injunctive relief and that the language
of the Agreement did not require arbitration of plaintiffs’ requests for
individual relief.
On appeal, Uber contends that the trial court erred in concluding
plaintiffs seek public injunctive relief and that, even if plaintiffs seek such
relief, the court erred in failing to grant the motion to arbitrate plaintiffs’
requests for individual relief.
We affirm. The trial court properly concluded plaintiffs’ requested
relief, which would benefit “all potential customers” of Uber’s rideshare
platform (Khan v. Coinbase, Inc. (2025) 115 Cal.App.5th 518, 532 (Khan)),
was a request for a public injunction. The court also properly concluded the
Agreement does not require severance. The Agreement is ambiguous on that
issue, and we construe it against Uber, the drafter, under Civil Code section
1654, particularly because the Agreement is a contract of adhesion.1 (See
1 Civil Code section 1654 provides, “In cases of uncertainty not removed
by the preceding rules, the language of a contract should be interpreted most
strongly against the party who caused the uncertainty to exist.”
All further statutory references are to the Civil Code unless otherwise
indicated.
2
Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 247–248 (Sandquist)
[section 1654 is a “general principle of contract interpretation [that] applies
equally to the construction of arbitration provisions”].)
This rule of contract law, known as the contra proferentem rule, is an
“interpretive canon” that “ ‘ “embod[ies] . . . [a] legal doctrine[] centuries older
than our Republic.” ’ ” (Loper Bright Enterprises v. Raimondo (2024) 603 U.S.
369, 435, fn. 5.) Nevertheless, Uber argues application of the rule is
preempted by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) under
the principle that “ambiguities about the scope of an arbitration agreement
must be resolved in favor of arbitration.” (Lamps Plus, Inc. v. Varela (2019)
587 U.S. 176, 189 (Lamps Plus).) We disagree. Lamps Plus clarifies that
preemption here would be inconsistent with the FAA. In holding that the
contra proferentem rule could not be applied to impose class arbitration, the
court reaffirmed that “ ‘[t]he first principle that underscores all of our
arbitration decisions’ is that ‘[a]rbitration is strictly a matter of consent’ ” and
concluded that “ambiguity does not provide a sufficient basis to conclude that
parties” consented to class arbitration. (Id. at pp. 184–185.) In this matter,
application of the contra proferentem rule ensures arbitration is unavailable
absent consent, and, for this reason, application of the contra proferentem
rule is not preempted by the FAA. We affirm the trial court’s order.
BACKGROUND
Uber is a company that operates a smartphone-based platform that
connects riders in need of transportation with drivers who provide it. To
access Uber’s smartphone application, riders must first create an Uber
account and enter into the Agreement. The parties concur that the relevant
Agreement is that modified in January 2023.
3
The Arbitration Agreement
The first page of the Agreement states in capitalized font that it
includes an “arbitration agreement” requiring riders “to resolve all disputes
with Uber on an individual basis” and that, “with limited exceptions, . . .
[they] are waiving [their] right to seek relief in a court of law and to have a
jury trial on [their] claims.” (Capitalization omitted.)
The Agreement requires parties to arbitrate, among other things, “any
dispute, claim, or controversy in any way arising out of or relating to . . .
access to or use of [Uber’s application] at any time.” The Agreement contains
a “Class Action Waiver,” whereby “[t]he parties . . . expressly waive the right
to seek, recover, or obtain any non-individual relief” or “to have any dispute,
claim, or controversy brought, heard, administered, resolved, or arbitrated as
a class, collective, coordinated, consolidated, and/or representative action.”
To the extent a court finds the class action waiver unenforceable, the
Agreement specifies that (1) “any class, collective, coordinated, consolidated,
and/or representative claims subject to the unenforceable or unlawful
portion(s) shall proceed in a court of competent jurisdiction”; (2) “the portion
of the Class Action Waiver that is enforceable shall be enforced in
arbitration”; (3) “the unenforceable or unlawful portion(s) shall be severed
from” the Agreement; and (4) severance “shall have no impact whatsoever on
the enforceability, applicability, or validity of the Arbitration Agreement or
the arbitrability of any remaining claims asserted by you or Uber.” The
Agreement also includes a general severability clause, which similarly
provides, “If any portion of this Arbitration Agreement is found to be
unenforceable or unlawful for any reason, (i) the unenforceable or unlawful
provision shall be severed from these Terms; (ii) severance of the
unenforceable or unlawful provision shall have no impact whatsoever on the
4
remainder of the Arbitration Agreement or the parties’ ability to compel
arbitration of any remaining claims on an individual basis pursuant to the
Arbitration Agreement; and (iii) to the extent that any claims must therefore
proceed on a class, collective, consolidated, or representative basis, such
claims must be litigated in a civil court of competent jurisdiction and not in
arbitration, and the parties agree that litigation of those claims shall be
stayed pending the outcome of any individual claims in arbitration.” The
Agreement states that it is governed by the FAA because it relates to “a
transaction involving interstate commerce.”
The Present Action and the Alleged Deceptive Pricing Scheme
In December 2024, plaintiffs filed the present action under California’s
UCL and FAL. The Complaint alleges Uber introduced “upfront” pricing on
its application in 2016. Uber claimed that feature allowed consumers to see
the “ ‘actual fare before they request [a] ride.’ ” Uber stated that its upfront
pricing “ ‘removes all of the guesswork and the risk’ ” for a consumer and that
“ ‘Uber takes a loss . . . when the actual driver [fare] is higher than the
estimated rider price.’ ”
Around January 2020, Uber announced it would start showing
consumers in California “ ‘an estimated price range, rather than a firm fixed
price when they request a trip.’ ” Under that model, the price paid
depended on the ride’s actual time and distance. In April 2021, Uber
announced it was abandoning estimated pricing due to poor customer
demand. Uber explained that removal of upfront pricing “ ‘caused a
substantial decrease in trip requests’ ” because “ ‘most riders are simply not
taking trips . . . without an upfront price.’ ”
The Complaint alleges that, although Uber told the public it was
returning to the upfront pricing model, and it advertises that the price it
5
displays is “ ‘the price [the consumer will] pay at the end of the ride,’ ” the
upfront price Uber shows consumers is in fact only an “estimate.” The
Complaint alleges, “After any given ride, if Uber determines that it
underestimated the time or length of the ride, Uber can—and frequently
does—charge the consumer more than the price it advertised.”
Plaintiffs sought certification of a class of “[a]ll individuals and entities
in California who at any time in the past four years have paid Uber a price
for a ride that was higher than the price advertised by Uber for that ride.”
Plaintiffs requested preliminary and permanent injunctive relief to prevent
Uber “from continuing the unlawful, deceptive, fraudulent, and unfair
business practices alleged in this Complaint, by advertising prices that are
lower than the prices consumers will actually pay.” And plaintiffs requested
“restitution and/or disgorgement of the amounts that Plaintiffs and the Class
members have paid to Uber for rides that were in excess of the Upfront Price
advertised.”
Uber’s Motion to Compel Arbitration
Uber moved to compel plaintiffs to arbitrate their individual requests
for relief, to dismiss plaintiffs’ representative requests for relief, and to stay
proceedings pending arbitration. Plaintiffs opposed and argued that, under
McGill, supra, 2 Cal.5th 945, the class action waiver was invalid as to their
request for public injunctive relief, and that, under the language of the
Agreement, the entirety of the action should remain in court. Uber argued
McGill did not apply because plaintiffs sought a private injunction and, in
any event, any request for public injunctive relief should be stayed pending
arbitration of the remainder of plaintiffs’ action.
In July 2025, the trial court denied Uber’s motion, holding that McGill
6
precluded enforcement of the class action waiver as to plaintiffs’ request for
public injunctive relief. Among other things, the court observed that
plaintiffs “allege deceptive representations to the public at large as well as to
potential and existing customers” because “[t]he challenged representations
appear on first view of Uber’s website” and “on screens in Uber’s rideshare
app that a potential customer may view even if the customer does not request
and purchase a ride.” Comparing the present case to Kramer v. Coinbase,
Inc. (2024) 105 Cal.App.5th 741 (Kramer), the trial court rejected “Uber’s
attempt to cast this action as an action for private injunctive relief based on
the mere existence of class allegations, the fact that the public injunctive
relief may not benefit the entire public as a diffuse whole, or the notion that,
irrespective of the fact that the public at large is alleged to have been
harmed, certain individuals suffered more harm because they, ultimately,
paid higher prices in addition to being exposed to the deceptive statements
and advertising.” The court also held that plaintiffs’ “additional request for
disgorgement of amounts collected by Uber above and beyond the advertised
prices” did not “overwhelm[] or transform[] the gravamen of this action and
the public character of the . . . primary injunctive relief requested by the
plaintiffs.”
The trial court then concluded that plaintiffs’ request for injunctive
relief could not be severed from the remainder of the action because the
arbitration agreement allowed only “claims” to be severed. The court relied
on two previous California consumer law cases construing “claim” in an
arbitration severance clause to mean “cause of action.” (See Blair v. Rent-A-
Center, Inc. (9th Cir. 2019) 928 F.3d 819 (Blair); Jack v. Ring LLC (2023) 91
Cal.App.5th 1186 (Jack).) The trial court explained: “Plaintiffs assert two
claims or causes of action under the UCL and FAL both of which are subject
7
to the unlawful waiver of public injunctive relief under McGill. Based on the
savings and severability language in the class action waiver, these claims are
to be litigated in court. There are no other ‘claims’ to be severed for
arbitration, and neither precedent nor the 2023 Agreement support the
proposition that the court should sever remedies or divide up components of
the claims.”
The present appeal followed. In October 2025, this court granted
Uber’s petition for writ of supersedeas, staying trial court proceedings
pending resolution of this appeal.2
DISCUSSION
This appeal arises from the trial court’s order denying Uber’s motion
to compel arbitration. “When, as here, a trial court’s order denying a [motion]
to compel arbitration is based on a question of law,” the order is reviewed
“de novo.” (Kramer, supra, 105 Cal.App.5th at p. 746.)
I. Plaintiffs Seek a Public Injunction
In McGill, supra, 2 Cal.5th 945, the California Supreme Court
“explained that the injunctive relief available under California’s consumer
protection statutes can be either public or private, and it used its prior
decisions to clarify the distinction between these two types of relief: ‘public
injunctive relief . . . is relief that has “the primary purpose and effect of”
prohibiting unlawful acts that threaten future injury to the general public’;
by contrast, relief ‘that has the primary purpose or effect of redressing or
preventing injury to an individual plaintiff—or to a group of individuals
similarly situated to the plaintiff—does not constitute public injunctive
2 In April 2026, this court granted an application by the Chamber of
Commerce of the United States of America (Chamber of Commerce) to file an
amicus curiae brief in support of Uber. Plaintiffs filed a response.
8
relief.’ [Citation.] The McGill court also clarified that the determination
whether a plaintiff is seeking public or private injunctive relief can be made
based solely on the complaint’s allegations and prayer for relief.” (Khan,
supra, 115 Cal.App.5th at pp. 525–526, quoting McGill, at pp. 955–958.) The
Supreme Court cited as an example of a public injunction “an injunction
under the [Consumers Legal Remedies Act (CLRA)] against a defendant’s
deceptive methods, acts, and practices [which] ‘generally benefit[s]’ the public
‘directly by the elimination of deceptive practices’ and ‘will . . . not benefit’ the
plaintiff ‘directly,’ because the plaintiff has ‘already been injured, allegedly,
by such practices and [is] aware of them.’ [Citation.] ‘[E]ven if a CLRA
plaintiff stands to benefit from an injunction against a deceptive business
practice, it appears likely that the benefit would be incidental to the general
public benefit of enjoining such a practice.’ ” (McGill, at p. 955.)
As relevant here, McGill proceeded to conclude that a “provision in the
parties’ arbitration agreement that purported to waive the statutory right to
seek public injunctive relief in any forum was invalid and unenforceable
under California law. [Citation.] Specifically, the court applied . . . section
3513, which provides: ‘Any one may waive the advantage of a law intended
solely for their benefit. But a law established for a public reason cannot be
contravened by a private agreement.’ Pursuant to section 3513 and
attendant case law, waiver of a statutory right is permissible only if the
‘ “statute’s ‘public benefit . . . is merely incidental to [its] primary purpose,’ ” ’
and ‘ “ ‘any public purpose’ ” ’ would not be seriously compromised by the
waiver. [Citation.] A waiver of the statutory right to seek public injunctive
relief available under the UCL, CLRA, and FAL does not meet these
requirements because the ‘ “evident purpose” ’ of public injunctive relief is
‘ “to remedy a public wrong,” “not to resolve a private dispute” [citation], and
9
any benefit to the plaintiff requesting such relief “likely . . . would be
incidental to the general public benefit of enjoining such a practice.” ’ ”
(Khan, supra, 115 Cal.App.5th at pp. 526–527, quoting McGill, supra, 2
Cal.5th at p. 961.)
In the present case, Uber does not dispute that McGill would bar
enforcement of the Agreement as to public injunctive relief. Instead, Uber
argues, “Plaintiffs’ proposed injunction falls squarely in the private-relief
camp. It would affect only a small subset of existing Uber users: those who
have already downloaded the app, created an Uber account, requested a ride,
and received an upfront price that was lower than the price actually paid.”
At the outset, like the trial court, we reject Uber’s assertion that plaintiffs do
not seek to enjoin the company’s false public advertisements. The Complaint
alleges, “On its website and elsewhere Uber publicly advertises to consumers
that the Upfront Price they see on Uber’s application is ‘the price they’ll pay
at the end of the ride.’ ” The Complaint also alleges, “Uber’s claim that it
shows consumers ‘the price they’ll pay at the end of the ride’ is false and
misleading, in violation of California’s [UCL] and [FAL].” The Complaint
states it seeks “a public injunction requiring Uber to comply with California’s
consumer protection laws” and requests “[a]n order permanently enjoining
Uber from continuing the unlawful, deceptive, fraudulent, and unfair
business practices alleged in this Complaint by advertising prices that are
lower than the prices consumers will actually pay.” We agree with the trial
court that it is unreasonable to conclude the requested injunction does not
encompass the allegedly false public advertising.
Based on the allegations regarding Uber’s false public advertisements,
the trial court concluded the injunction sought was public under the
reasoning of Kramer, supra, 105 Cal.App.5th 741. In Kramer, the plaintiffs
10
alleged a cryptocurrency company misrepresented the security features of its
platform in public advertisements. (Id. at pp. 744, 749.) Kramer observed
that the “complaint asserts [the defendant] is continuing to misrepresent its
security measures precisely to deceive the general public into creating
accounts, investing money, and utilizing its services. The complaint seeks
injunctive relief to bar [the defendant] from continuing to make such
statements to the public.” (Id. at p. 751, fn. omitted.) Similarly, the trial
court concluded that plaintiffs seek to enjoin Uber from false public
advertising regarding their pricing.
In any event, it is immaterial whether the Complaint seeks an
injunction against public-facing advertisements. In Khan, supra, 115
Cal.App.5th at page 530, the court rejected the proposition “that conduct
directed at a defendant’s customers can never support a request for public
injunctive relief.” There, the plaintiff, who had created a user account to
access the defendant’s online digital currency services, filed suit under the
UCL and FAL. (Id. at p. 522.) The plaintiff alleged the defendant charged
“customers a ‘hidden’ fee to conduct transactions” that is not “displayed on
any of the screens that the customer reviews when placing an order.” (Ibid.)
The plaintiff alleged the defendant “deceptively leads reasonable consumers
to believe that the price quoted for a cryptocurrency transaction . . . includes
all fees the consumer will pay to complete the transaction” and sought “an
injunction prohibiting [the defendant] from continuing to engage in these
unlawful practices.” (Id. at p. 523.) As in the present case, Khan involved a
request for an injunction to prohibit an allegedly deceptive pricing scheme in
offers to registered users of an online platform.
In Khan, the defendant argued, “the injunction [the plaintiff] seeks
cannot possibly benefit the public because only existing Coinbase customers
11
can access the platform on which the allegedly unlawful conduct occurs.”
(Khan, supra, 115 Cal.App.5th at p. 529.) In rejecting that argument, Khan
reasoned, “the unlawful business practice that [the plaintiff] describes and
seeks to enjoin affects the general public because any member of the public
may access and elect to use Coinbase’s online platform. True, a potential
Coinbase customer must first create a user account before attempting to
make a trade, but this is simply the online equivalent of driving to, parking
at, and walking into a brick-and-mortar store. Creating a user account is the
threshold a potential customer must cross before transacting business with
Coinbase, and . . . Coinbase did not ‘demonstrate that it restricts access to its
services in a meaningful way,’ or that ‘any member of the public cannot
simply create credentials and access Coinbase’s services.’ ” (Ibid.)
Khan specifically rejected a contention that the lack of public
advertising meant the injunction sought private relief, stating, “Kramer does
not hold or intimate that Coinbase can avoid lawsuits for public injunctive
relief so long as its misleading statements do not appear in public
advertisements.” (Khan, supra, 115 Cal.App.5th at p. 531.) Khan explained,
“the statutory violations that [the plaintiff] alleges do not arise from a
promise that Coinbase made to a specific group of existing customers, but
from the manner in which Coinbase describes its prices and fees to all
potential customers on the Simple Trade platform. The public stands to
benefit from the requested relief, if it prevents Coinbase from continuing to
engage in the alleged deception.” (Id. at p. 532; see also Maldonado v. Fast
Auto Loans, Inc. (2021) 60 Cal.App.5th 710, 722 [“although ‘not all members
of the public will become customers of [the defendant]’ this ‘does not negate
the fact that public injunctive relief will nevertheless offer benefits to the
general public’ ”]; Mejia v. DACM Inc. (2020) 54 Cal.App.5th 691, 703 [“ ‘[the
12
plaintiff]’s prayer does not limit itself to relief only for class members or some
other small group of individuals; it encompasses “consumers” generally’ ”];
see also Ramsey v. Comcast Cable Communications, LLC (2023) 99
Cal.App.5th 197, 211–212 (Ramsey) [following Maldonado and Mejia].)
The same reasoning applies here. We reject amicus curiae Chamber of
Commerce’s argument (and equivalent arguments by Uber) that this case is
materially distinct from Khan because “no price exists until the user enters a
specific pickup location and destination and receives an individualized quote
based on real-time conditions.” In Khan, supra, 115 Cal.App.5th at page 522,
the allegedly deceptive percentage-based fee was “not displayed on any of the
screens that the customer reviews when placing an order” and only shown on
an “ ‘Order Preview’ ” screen after a customer entered a request to purchase
digital currency. Consequently, the deceptive pricing in Khan was also tied
to individual orders. In any event, the crucial point is that the requested
injunction would protect potential customers from Uber’s allegedly deceptive
pricing practices. Uber cannot evade consumer protection laws just because
its allegedly deceptive scheme is complicated.
Uber also attempts to distinguish Khan on the basis that the plaintiff
there did not also seek monetary relief. However, “[t]hat [p]laintiffs seek a
monetary recovery in addition to injunctive relief does not preclude a
determination that they seek a public injunction.” (Vaughn v. Tesla, Inc.
(2023) 87 Cal.App.5th 208, 229, fn. 14 (Vaughn); see also McGill, supra, 2
Cal.5th at p. 957, fn. 1 [noting that plaintiff sought monetary relief in
addition to public injunctive relief].) As Khan explained, “When the primary
purpose of an injunction is to prohibit an ongoing violation of consumer
protection laws, the relief sought is usually public relief because the benefit
to the plaintiff or a group of similarly situated individuals is not materially
13
different from the benefit that inures to the broader public.” (Khan, supra,
115 Cal.App.5th at p. 530.) Under that analysis, plaintiffs’ request for an
injunction clearly seeks public relief, even though they also seek restitution
and/or disgorgement.
We reject Uber’s reliance on Hodges v. Comcast Cable Communications,
LLC (9th Cir. 2021) 21 F.4th 535 (Hodges). Hodges was a putative class
action brought by a former Comcast subscriber who alleged the defendant
violated federal and state law in the way it collected and used subscriber
personal data. (Id. at pp. 537–538.) As explained in Khan, Hodges
“concluded that the complaint in that case sought private relief because the
plaintiff’s requests stood to benefit only the defendant’s cable subscribers.”
(Khan, supra, 115 Cal.App.5th at p. 534.) Khan distinguished the case
because the relief sought in Khan “would not benefit only a discrete class of
persons, such as the class of individuals who transacted business on the
[defendant’s] platform in the years leading up to the filing of the complaint.”
(Id. at p. 534.) The same reasoning applies here. In any event, to the extent
Hodges is in conflict with Khan, we follow Khan. (See Ramsey, supra, 99
Cal.App.5th at p. 207 [declining to follow Hodges and concluding that “an
injunction that benefits both existing and potential Comcast subscribers
qualifies as a public injunction”]; Vaughn, supra, 87 Cal.App.5th at p. 231, fn.
16 [declining to follow Hodges and opining that “the analysis of the dissent
[in Hodges] is more consistent with McGill”].)3
3 Amicus curiae the Chamber of Commerce cites various federal district
court cases and an unreported Ninth Circuit decision that it argues support
Uber’s position that plaintiffs do not seek a public injunction under McGill.
Those decisions follow Hodges and, because they precede Khan, they fail to
address Khan’s reasoning, with which we agree.
14
We also reject Uber’s contention that plaintiffs’ requested injunction is
not public because, Uber asserts, it “would require numerous individualized
inquiries” and “[t]he only way to determine compliance . . . is to evaluate each
individual ride and the unique circumstances associated with that ride.” In
support, Uber relies on an assertion in Hodges that public injunctive relief is
“prospective injunctive relief that aims to restrain future violations of law for
the benefit of the general public as a whole . . . and that does so without
requiring consideration of the individual claims of non-parties.” (Hodges,
supra, 21 F.4th at p. 548.) We are hesitant to read that language to create an
additional basis for a finding that an injunction does not seek public relief.
Under McGill, the sole inquiry is whether the injunction “has the primary
purpose and effect of prohibiting unlawful acts that threaten future injury to
the general public.” (McGill, supra, 2 Cal.5th at p. 951.) As plaintiffs point
out, “McGill did not condition the public nature of an injunction on ease of
enforcement.”
In any event, we need not resolve that issue because the present case
does not implicate the concerns identified in Hodges, supra, 21 F.4th 535.
Hodges affirmed the public nature of an injunction request in Blair, supra,
928 F.3d 819, that “sought to stop [the defendant] from using an unlawful
pricing structure [citation], thereby enjoining ‘future violations’ of California
law in a manner that diffusely benefitted the general public as a whole.”
(Hodges, at p. 544.) Hodges characterized as private other injunctions sought
in Blair, noting that the Blair court “did not rely on the other forms of
injunctive relief that the plaintiff requested . . . , namely, an order requiring
[the defendant] to perform a retroactive ‘accounting of monies obtained from
California consumers’ and to provide ‘individualized notice to those
consumers of their statutory rights.’ [Citation.] . . . [T]hese other forms of
15
requested relief in Blair were retrospective, aimed at a specific class of
persons (i.e., those who already had Rent-A-Center contracts), or would
require individualized consideration of the private rights and obligations of
particular non-parties.” (Id. at p. 544, fn. 4.) In the present case, Uber has
not shown that plaintiffs’ forward-looking injunction request is materially
different from the request in Blair that Hodges described as requesting public
relief.4 (See also Khan, supra, 115 Cal.App.5th at p. 534 [declining to follow
Hodges and stating that the plaintiff’s claim does not “require the court to
consider the private rights and obligations of individual nonparties, as by
requiring a judicial assessment of the fairness of their individual
transactions”].)5
The reasoning in Khan is fully applicable in the present case. (See also
Kramer, supra, 105 Cal.App.5th at pp. 747–750 [summarizing other
4 In Blair, the plaintiffs alleged violation of a California law prohibiting
“ ‘unfair or unconscionable conduct toward consumers’ who enter into rent-to-
own agreements.” (Blair, supra, 928 F.3d at p. 822.) The law “sets statutory
maximums for both the ‘total of payments’ amount for installment payments
and the ‘cash price’ for rent-to-own items. [Citation.] These maximums are
set in proportion to the ‘documented actual cost’ of the items to the
lessor/seller.” (Id. at p. 823.) Uber has not shown the forward-looking
injunctive request in the present case would require more individualized
inquiries than the equivalent request in Blair.
5 We also reject Uber’s reliance on the decisions in Clifford v. Quest
Software Inc. (2019) 38 Cal.App.5th 745 and Torrecillas v. Fitness
International, LLC (2020) 52 Cal.App.5th 485. As explained in Kramer, “both
Clifford and Torrecillas involved alleged wage and hour violations” and
“involved complaints that focused on harm to the plaintiff and did not seek
broader injunctive relief.” (Kramer, supra, 105 Cal.App.5th at p. 750.) We
similarly reject Uber’s reliance on Kilgore v. KeyBank, N.A. (9th Cir. 2013)
718 F.3d 1052, where the court noted that “[t]he injunctive relief sought . . . ,
for all practical purposes, relates only to past harms suffered by the members
of the limited putative class.” (Id. at p. 1061.)
16
California cases analyzing “whether a complaint asserts public or private
injunctive relief under the framework set forth in McGill”].) It is clear a
request for an injunction to stop allegedly deceptive pricing practices on the
widely used Uber platform is a request for a public injunction. Accordingly,
the trial court properly concluded that the Agreement’s waiver of the right to
seek nonindividual relief is unenforceable as to plaintiffs’ request for
injunctive relief.6
II. The Request for a Public Injunction Is Not Severable
In the alternative, Uber argues that plaintiffs’ request for a public
injunction is severable from their requests for restitution and/or
disgorgement. Uber asks this court to direct the trial court to stay the
portion of its action seeking public injunctive relief pending arbitration of
plaintiffs’ requests for individual relief. Resolution of that issue requires us
to construe the relevant portions of the Agreement. As explained below, we
conclude that the Agreement is ambiguous and that we are required to apply
California’s rule that ambiguities in an agreement are construed against the
drafter (§ 1654)—which for convenience we refer to by its Latin name, the
contra proferentem rule. (Lamps Plus, supra, 587 U.S. at p. 186; see also
Mitchell v. Exhibition Foods, Inc. (1986) 184 Cal.App.3d 1033, 1042.)7 We
6 Uber also asserts that the trial court “fashioned a new per se rule”
because the court commented that the UCL and FAL, “ ‘by their very nature,
exist to protect the public.’ ” It is clear the court did not employ a per se rule
that all injunction requests under the UCL and FAL are public within the
meaning of McGill. Instead, the trial court followed the ruling in Kramer,
supra, 105 Cal.App.5th 741. As explained herein, the court’s ruling is more
clearly supported in Khan. Thus, we need not address Uber’s contention that
a per se rule would be preempted by the FAA.
7 We requested and received supplemental briefing from the parties
regarding the applicability of the contra proferentem rule in this case.
17
reject Uber’s argument that the FAA preempts application of that rule. The
contra proferentem rule is a neutral, generally applicable state rule of
contract interpretation. Lamps Plus held the rule was preempted in that
case only because it would have imposed class arbitration without consent,
“ ‘interfer[ing] with fundamental attributes of arbitration and thus creat[ing]
a scheme inconsistent with the FAA.’ ” (Lamps Plus, at p. 188.) Given that
application of the rule in the present case presents no such concerns and
effectuates the first principle of consent, the contra proferentem rule is not
preempted and the entirety of plaintiffs’ action must be litigated in court.
A. The FAA and Interpretation of Arbitration Agreements
Section 2 of the FAA provides in relevant part: “A written provision in
. . . a contract evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such contract or
transaction . . . shall be 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.) “That provision creates substantive federal law regarding the
enforceability of arbitration agreements, requiring courts ‘to place such
agreements upon the same footing as other contracts.’ ” (Arthur Andersen
LLP v. Carlisle (2009) 556 U.S. 624, 630 (Arthur Andersen); accord, Coinbase,
Inc. v. Suski (2024) 602 U.S. 143, 148 (Suski); see also Morgan v. Sundance,
Inc. (2022) 596 U.S. 411, 418 (Morgan) [“The federal policy is about treating
arbitration contracts like all others, not about fostering arbitration”]; Western
Bagel Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 662 (Western
Bagel) [the FAA “ ‘ “ ‘declare[s] a national policy favoring arbitration’ of
claims that parties contract to settle in that manner” ’ ”].)
“ ‘A petition to compel arbitration is simply a suit in equity seeking
specific performance of a contract.’ ” (Mendoza v. Trans Valley Transport
18
(2022) 75 Cal.App.5th 748, 764.) Although “state law is preempted to the
extent it ‘stands as an obstacle to the accomplishment and execution of the
full purposes and objectives’ of the FAA” (Lamps Plus, supra, 587 U.S. at
p. 183), the FAA does not “alter background principles of state contract law
regarding the scope of agreements” (Arthur Andersen, supra, 556 U.S. at
p. 630). Thus, “ ‘[g]eneral principles of California contract law guide the
court’ ” in determining “ ‘whether the parties actually agreed to arbitrate the
dispute.’ ” (Ford Motor Warranty Cases (2025) 17 Cal.5th 1122, 1128, italics
added; see also Fleming v. Oliphant Financial, LLC (2023) 88 Cal.App.5th 13,
21 [“ ‘An arbitration agreement is subject to the same rules of construction as
any other contract’ ”]; accord, Mendoza, at p. 764; Western Bagel, supra, 66
Cal.App.5th at p. 662.)
“ ‘ “ ‘Under statutory rules of contract interpretation, the mutual
intention of the parties at the time the contract is formed governs
interpretation. [Citation.] Such intent is to be inferred, if possible, solely
from the written provisions of the contract.’ ” ’ ” (TRB Investments, Inc. v.
Fireman’s Fund Ins. Co. (2006) 40 Cal.4th 19, 27.) Generally, “ ‘[t]he whole of
a contract is to be taken together, so as to give effect to every part, if
reasonably practicable, each clause helping to interpret the other.’ ” (Boghos
v. Certain Underwriters at Lloyd’s of London (2005) 36 Cal.4th 495, 503.)
A “ ‘ “provision will be considered ambiguous when it is capable of two or
more constructions, both of which are reasonable.” ’ ” (TRB Investments, at p.
27.) “[A]mbiguities in written agreements are to be construed against their
drafters.” (Sandquist, supra, 1 Cal.5th at p. 247; see also § 1654.)8
8 To the extent Uber argues that only the question of “ ‘the existence’ ”
of an arbitration agreement is governed by state contract law, and not the
“scope” of the agreement, any such argument is plainly contrary to the
authorities cited above. (See, e.g., Arthur Andersen, supra, 556 U.S. at p. 630
19
B. The Agreement Is Ambiguous
It is undisputed that the Agreement requires arbitration of disputes
and that it contains a class action waiver that violates McGill, supra, 2
Cal.5th 945 to the extent it bars plaintiffs from seeking public injunctive
relief in any forum. The parties agree the Agreement contains specific and
general severability provisions, as described previously, but they disagree
whether those provisions require that plaintiffs’ requests for individual relief
be sent to arbitration. We conclude the Agreement is ambiguous on that
issue.
Plaintiffs argue, and the trial court concluded, that the language “any
class, collective, coordinated, consolidated, and/or representative claims
subject to the unenforceable or unlawful portion(s) [of the class action waiver]
shall proceed in a court of competent jurisdiction” means that the entirety of
each of their two causes of action (under the UCL and the FAL) must be
litigated in court. They primarily rely on the decisions in Blair, supra, 928
F.3d 819 and Jack, supra, 91 Cal.App.5th 1186, which were also California
[the FAA does not “purport[] to alter background principles of state contract
law regarding the scope of agreements”]; see also Sandquist, supra, 1 Cal.5th
at p. 248 [section 1654 “applies equally to the construction of arbitration
provisions”].) Uber’s argument is a misapplication of cases stating that no
presumption in favor of arbitration applies where the existence of an
arbitration agreement is at issue. (See Johnson v. Walmart Inc. (9th Cir.
2023) 57 F.4th 677, 680–681; Goldman, Sachs & Co. v. City of Reno (9th Cir.
2014) 747 F.3d 733, 742.) That limitation on application of the presumption
in favor of arbitration should not be read to mean that state law principles do
not apply to construing the scope of an arbitration agreement, which would
be contrary to the fundamental proposition that arbitration agreements are
to be treated the same as other contracts, as stated in Arthur Andersen,
Sandquist, and numerous other decisions.
20
consumer protection actions.9 Both cases involved waivers that violated
McGill and considered whether the language of the applicable agreements
required the severance of requests for public injunctive relief. Both cases
involved identical severability language providing that, if a court decides that
a waiver is unenforceable “as to a particular claim for relief, then that claim
(and only that claim) must be severed from the arbitration and may be
brought in court.” (Blair, at p. 831; Jack, at p. 1209.)
Blair, decided first, observed that “[p]arties are welcome to agree to
split decisionmaking between a court and an arbitrator” by “requiring the
arbitrator to adjudicate liability first” and “carv[ing] out only the potential
public injunctive remedy” for a court’s determination. (Blair, supra, 928 F.3d
at p. 831.) But Blair concluded the parties had not done so, reasoning that a
“ ‘claim for relief,’ as that term is ordinarily used, is synonymous with ‘claim’
or ‘cause of action.’ ” (Ibid.) Jack followed Blair in rejecting the defendant’s
argument that “the parts of plaintiffs’ three causes of action that involve a
prayer for public injunctive relief should be severed from arbitration and
plaintiffs should be ordered to arbitrate ‘liability, damages, and non-public
injunctive relief.’ ” (Jack, supra, 91 Cal.App.5th at p. 1209.) The court
commented, “it is far more reasonable to read ‘claim for relief’ to refer to a
person’s claim and not to a particular remedy requested in respect to a
claim.” (Ibid.; see also Vasquez v. Cebridge Telecom CA, LLC (N.D.Cal. 2021)
569 F.Supp.3d 1016, 1028–1029 [also following Blair]; cf. Lag Shot LLC v.
9 Blair involved the UCL, the Consumers Legal Remedies Act (CLRA),
and two other consumer protection laws (Blair, supra, 928 F.3d at p. 823);
Jack involved the FAL, the UCL, and the CLRA (Jack, supra, 91 Cal.App.5th
at p. 1192).
21
Facebook, Inc. (N.D.Cal. 2021) 545 F.Supp.3d 770, 785 [the “severance clause
explicitly permits the severability of a ‘request for particular relief’ ”].)10
Plaintiffs assert, “Uber drafted its severability clause against that
backdrop.” It is true that, had Uber or plaintiffs researched the meaning of
“claim” in January 2023, their understanding of the term would have been
informed by the Blair decision, which involved the same consumer protection
context and the exact same issue as in the present case. (See Ford v. The
Silver F, Inc. (2025) 110 Cal.App.5th 553, 568 (Ford) [“The parties to a
contract are presumed to have had the existing law in mind when they
executed their agreement”].) Thus, Uber was on constructive notice that, if it
sought “to split decisionmaking between a court and an arbitrator” (Blair,
supra, 928 F.3d at p. 831), the term “claim” was, at best, a problematic word
to use to accomplish that end. We conclude that one reasonable
interpretation of the Agreement is that the entirety of plaintiffs’ UCL and
FAL causes of action must proceed in court.
On the other hand, Uber emphasizes that “the FAA ‘requires piecemeal
resolution [of related disputes in different forums] when necessary to give
effect to an arbitration agreement,’ ” including “ ‘piecemeal litigation of
“arbitrable and inarbitrable remedies derived from the same statutory
claim.” ’ ” (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1125
(Adolph); see also Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639,
662 (Viking River).) Uber argues that the Agreement reflects an intent to
sever only the inarbitrable request for a public injunction, because the
10 Plaintiffs also cite to the decision Duran v. EmployBridge Holding
Co. (2023) 92 Cal.App.5th 59, but there the agreement stated broadly that
“claims under [the Private Attorneys General Act (PAGA)] are not
arbitrable,” which is naturally read as excluding the entirety of the cause of
action. (Id. at p. 66.)
22
Agreement states that “the unenforceable or unlawful portion(s) [of the
waiver] shall be severed” and “severance of the unenforceable or unlawful
portion(s) shall have no impact whatsoever on the enforceability,
applicability, or validity of the Arbitration Agreement or the arbitrability of
any remaining claims.”
Uber analogizes the present case to Viking River, which held the FAA
preempted a state law rule that “preclude[d] division of PAGA actions into
individual and non-individual claims through an agreement to arbitrate.”
(Viking River, supra, 596 U.S. at p. 662.) The court stated that the parties’
arbitration agreement required severance, reasoning “the severability clause
in the agreement provides that if the waiver provision is invalid in some
respect, any ‘portion’ of the waiver that remains valid must still be ‘enforced
in arbitration.’ Based on this clause, [the defendant] was entitled to enforce
the agreement insofar as it mandated arbitration of [the plaintiff’s]
individual PAGA claim. The lower courts refused to do so based on the rule
that PAGA actions cannot be divided into individual and non-individual
claims. Under our holding, that rule is preempted, so [the defendant] is
entitled to compel arbitration of [the plaintiff’s] individual claim.” (Ibid.)
Viking River stands for the proposition that arbitration agreements
should be enforced where they reflect an intent to sever a cause of action into
arbitrable and nonarbitrable components. But Viking River is of little help in
construing the language of the Agreement. The decision nowhere recites in
detail the language of its arbitration agreement, apparently because there
was no dispute that the severance clause required arbitration of individual
requests for relief if the FAA preempted the California rule, which was the
actual issue in the case. (Viking River, supra, 596 U.S. at pp. 647, 649, 662.)
That is, Viking River is not authority regarding the meaning of “claim” in
23
arbitration agreements or the effect of language in arbitration agreements
that exempt certain “claims” from arbitration. (People v. Alvarez (2002) 27
Cal.4th 1161, 1176 [“[I]t is axiomatic that cases are not authority for
propositions not considered”].) Thus, we reject Uber’s assertion that Viking
River “interpreted” a “materially identical savings clause” to require
severance and arbitration of individual requests for relief.
Uber also heavily relies on the language of the arbitration agreement in
Adolph, supra, 14 Cal.5th 1104, but that decision did not construe the
agreement. The court recited the language of the agreement in explaining
the procedural history, but the issue on appeal was whether the plaintiff had
standing “to litigate claims on behalf of other employees under PAGA.” (Id.
at pp. 1114–1115.) The court declared: “We limited our review to the
question of PAGA standing and express no view on the parties’ arguments
regarding the proper interpretation of the arbitration agreement.” (Id. at pp.
1128–1129.)
Another case Uber relies upon, Gregg v. Uber Technologies, Inc. (2023)
89 Cal.App.5th 786, is distinguishable. There, the severance clause stated
that “ ‘any representative action brought under PAGA on behalf of others
must be litigated in a civil court . . . .’ ” (Id. at p. 798.) In finding the
plaintiff’s request for individual relief arbitrable, the court emphasized that
the clause referred to “a ‘representative action’ under PAGA ‘brought on
behalf of others’ ” and reasoned that “[t]o interpret the language at issue to
mean an entire PAGA lawsuit, including both its individual and
nonindividual components, would render the phrase ‘brought on behalf of
others’ surplusage.” (Id. at p. 800.) In contrast, the Agreement exempts from
arbitration “any class, collective, coordinated, consolidated, and/or
representative claims subject to the unenforceable or unlawful portion(s)” of
24
the waiver. Uber points to no language rendered surplusage by plaintiffs’
interpretation; under the reasoning of Gregg, a “representative claim” subject
to an unenforceable waiver may refer to a cause of action seeking
representative relief (as plaintiffs argue, based on the Blair and Jack
decisions) or just the request for representative relief (as Uber argues).
Uber also argues the Jack and Blair decisions erred in treating the
term “claim” as clear and dispositive, because the term has “varied
meanings.” The point is well taken. “Claim” has no single legal meaning:
“claim” may refer to a “cause of action” or it may refer to a “claim for relief.”
(Black’s Law Dict. (12th ed. 2024); see also Dziubla v. Piazza (2020) 59
Cal.App.5th 140, 148, fn. 4 [“the terms ‘cause of action’ and ‘claim’ can have
different meanings depending on the context in which they are used”].)
Indeed, some of the seminal arbitration cases discussed herein employ the
term loosely. In Viking River, the term “claim” is used to refer to both the
overall Private Attorneys General Act (PAGA) cause of action as well as the
individual and representative requests for relief. (Viking River, supra, 596
U.S. at p. 648 [referencing question of whether “PAGA claims” may “be split
into arbitrable individual claims and nonarbitrable ‘representative’ claims”];
see also McGill, supra, 2 Cal.5th at p. 966 [referring to “public injunctive
relief claims”].)
Thus, the word “claim” had no single, clear meaning at the time of the
2023 Agreement. And the parties point to no other aspects of the Agreement
that conclusively support one construction of “claim” over another. Uber
repeatedly emphasizes the language that “severance of the unenforceable or
unlawful portion(s) shall have no impact whatsoever on the . . . arbitrability
of any remaining claims.” But that language does not avoid the ambiguity of
the term “claim,” because if “claim” means “cause of action,” then that
25
provision only preserves the arbitrability of any causes of action not impacted
by the unenforceable waiver. Uber implicitly concedes that the Agreement as
a whole is ambiguous, arguing, “Read in context, ‘claim’ can be reasonably
understood to mean a demand for relief . . . .” (Italics added.) Since that is a
reasonable interpretation rather than the only reasonable interpretation, the
Agreement is ambiguous as to whether it requires severance of the entirety of
the causes of action seeking public injunctions, or only the portions of the
causes of action requesting that relief.11
C. The FAA Does Not Preempt the Contra Proferentem Rule in the
Present Case
In California, the contra proferentem rule appears in section 1654, and
is located in a portion of the Civil Code governing the interpretation of
contracts. (§ 1635 et seq.) Section 1635 provides, “All contracts, whether
public or private, are to be interpreted by the same rules, except as otherwise
provided by this code.” Section 1637 provides, “For the purpose of
ascertaining the intention of the parties to a contract, if otherwise doubtful,
the rules given in this Chapter are to be applied.” Relevant here, section
1654 provides, “In cases of uncertainty not removed by the preceding rules,
11 Uber also argues that, even if the parties had intended “claim” to
refer to a “cause of action,” severance would still be required because a cause
of action corresponds to a primary right and the statutes involved here give
rise to “two primary rights”—rights based on differing individual and public
interests. (Mejia v. Merchants Building Maintenance, LLC (2019) 38
Cal.App.5th 723, 739, disapproved on another ground in ZB, N.A. v. Superior
Court (2019) 8 Cal.5th 175, 196, fn. 8.) The argument is misplaced. Even
assuming plaintiffs’ UCL and FAL causes of action involve two primary
rights—a point plaintiffs dispute—there is no basis to conclude that the
parties intended “claim” to refer to causes of action as defined under the
primary rights analysis rather than as pled in the complaint. Thus, Uber’s
argument, at the most, only identifies a further ambiguity in the word
“claim.”
26
the language of a contract should be interpreted most strongly against the
party who caused the uncertainty to exist.” In Sandquist, supra, 1 Cal.5th at
page 247, the California Supreme Court quoted the Restatement’s
explanation of the rationale for the rule: “ ‘Where one party chooses the terms
of a contract, he is likely to provide more carefully for the protection of his
own interests than for those of the other party. He is also more likely than
the other party to have reason to know of uncertainties of meaning. Indeed,
he may leave meaning deliberately obscure, intending to decide at a later
date what meaning to assert. In cases of doubt, therefore, so long as other
factors are not decisive, there is substantial reason for preferring the
meaning of the other party.’ ”
Sandquist applied the contra proferentem rule in interpreting an
arbitration agreement to determine if the agreement allocated to the court or
the arbitrator the question of whether class arbitration was permissible.
(Sandquist, supra, 1 Cal.5th at p. 241.) The court first recited the default
rule that “when the allocation of a matter to arbitration or the courts is
uncertain, we resolve all doubts in favor of arbitration.” (Id. at p. 247.) The
court explained that, “All else being equal, this presumption tips the scales in
favor of allocating the class arbitration availability question to the
arbitrator.” (Ibid., italics added.) The court then explained that a second
interpretative principle— that “ambiguities in written agreements are to be
construed against their drafters”—also applied. (Ibid.) The court quoted
from the Restatement, as recited above, and stated, “Thus, where, as here,
the written agreement has been prepared entirely by the employer, it is a
‘well established rule of construction’ that any ambiguities must be construed
against the drafting employer and in favor of the nondrafting employee.
[Citations.] Moreover, ‘[t]he rule requiring the resolution of ambiguities
27
against the drafting party “applies with peculiar force in the case of a
contract of adhesion. Here the party of superior bargaining power not only
prescribes the words of the instrument but the party who subscribes to it
lacks the economic strength to change such language.” ’ ” (Id. at p. 248.)
The Sandquist court emphasized that “[t]his general principle of
contract interpretation applies equally to the construction of arbitration
provisions. [Citations.] Where the drafter of a form contract has prepared an
arbitration provision whose application to a particular dispute is uncertain,
ordinary contract principles require that the provision be construed against
the drafter’s interpretation and in favor of the nondrafter’s interpretation.”
(Sandquist, supra, 1 Cal.5th at p. 248; see also Victoria v. Superior Court
(1985) 40 Cal.3d 734, 739 (Victoria); accord, Rebolledo v. Tilly’s, Inc. (2014)
228 Cal.App.4th 900, 913.) Ultimately, although both the default
presumption in favor of arbitration and the contra proferentem rule favored
sending the issue to arbitration, Sandquist focused on the latter rule: “To the
extent that omission creates any ambiguity, it is [the employer] that ‘drafted
an ambiguous document, and . . . cannot now claim the benefit of the doubt.’
[Citation.] We conclude, as a matter of state contract law, the parties’
arbitration provisions allocate the decision on the availability of class
arbitration to the arbitrator, rather than reserving it for a court.”
(Sandquist, at p. 248.) Thus, Sandquist holds that the contra proferentem
rule applies to the interpretation of ambiguous arbitration agreements,
especially standard form agreements.
Uber argues that, if the Agreement is ambiguous, the contra
proferentem rule is preempted by the FAA and “ambiguities about the scope
of an arbitration agreement must be resolved in favor of arbitration.” (Lamps
Plus, supra, 587 U.S. at p. 189.) In Lamps Plus, the United States Supreme
28
Court held the FAA preempted application of the contra proferentem rule to
impose class arbitration where the agreement was ambiguous about its
availability. (Id. at p. 178.) The court explained that an ambiguous
agreement cannot “provide the necessary ‘contractual basis’ for compelling
class arbitration” because “[c]lass arbitration is not only markedly different
from the ‘traditional individualized arbitration’ contemplated by the FAA, it
also undermines the most important benefits of that familiar form of
arbitration.” (Id. at p. 183.) Lamps Plus extended a previous decision
holding “a court may not compel arbitration on a classwide basis when an
agreement is ‘silent’ on the availability of such arbitration.” (Id. at p. 178
[referencing Stolt-Nielsen S.A. v. AnimalFeeds Internat. Corp. (2010) 559 U.S.
662].)
Lamps Plus reaffirmed the proposition that “state contract principles”
are applied to “ ‘enforce arbitration agreements according to their terms,’ ”
but the court explained that “state law is preempted to the extent it ‘stands
as an obstacle to the accomplishment and execution of the full purposes and
objectives’ of the FAA.” (Lamps Plus, supra, 587 U.S. at p. 183.) Lamps Plus
emphasized that the “ ‘first principle that underscores all of our arbitration
decisions’ is that ‘[a]rbitration is strictly a matter of consent.’ ” (Id. at p. 184.)
“Because of [the] ‘crucial differences’ between individual and class
arbitration,” “courts may not infer consent to participate in class arbitration
absent an affirmative ‘contractual basis for concluding that the
party agreed to do so.’ ” (Id. at p. 185.)
Turning to the contra proferentem rule, Lamps Plus observed it is a
rule that “applies ‘only as a last resort’ when the meaning of a provision
remains ambiguous after exhausting the ordinary methods of interpretation.
[Citation.] At that point, contra proferentem resolves the ambiguity against
29
the drafter based on public policy factors, primarily equitable considerations
about the parties’ relative bargaining strength.” (Lamps Plus, supra, 587
U.S. at p. 186.) The court acknowledged it is a doctrine of contract
interpretation that “enjoys a place in every hornbook and treatise on
contracts” but cautioned that “ ‘the reach of the canon construing contract
language against the drafter must have limits.’ ” (Id. at p. 187.) Lamps Plus
then explained that the circumstances in the case brought “those limits into
focus” because “[u]nlike contract rules that help to interpret the meaning of a
term, and thereby uncover the intent of the parties, contra proferentem is by
definition triggered only after a court determines that it cannot discern the
intent of the parties. When a contract is ambiguous, contra proferentem
provides a default rule based on public policy considerations . . . .” (Ibid.)
That presented a problem, because “ ‘[C]lass arbitration, to the extent it is
manufactured by [state law] rather than consen[t], is inconsistent with the
FAA.’ ” (Ibid.)
Lamps Plus concluded, “Like silence, ambiguity does not provide a
sufficient basis to conclude that parties to an arbitration agreement agreed to
‘sacrifice[] the principal advantage of arbitration.’ ” (Lamps Plus, supra, 587
U.S. at p. 185.) Therefore, the court held, “The general contra proferentem
rule cannot be applied to impose class arbitration in the absence of the
parties’ consent.” (Id. at p. 188.) “Courts may not infer from an ambiguous
agreement that parties have consented to arbitrate on a classwide basis. The
doctrine of contra proferentem cannot substitute for the requisite affirmative
‘contractual basis for concluding that the part[ies] agreed to [class
arbitration].’ ” (Id. at p. 189.)
Uber fails to point to anything in the reasoning of Lamps Plus that
suggests the FAA preempts the contra proferentem rule where application of
30
the rule would not manufacture consent to a “ ‘scheme’ ” that “ ‘interferes
with fundamental attributes of arbitration and [is] thus . . . inconsistent with
the FAA.’ ” (Lamps Plus, supra, 587 U.S. at p. 188; see also Winns v.
Postmates Inc. (2021) 66 Cal.App.5th 803, 814 [Lamps Plus “held that the
FAA preempts California’s contra proferentem rule . . . when the rule is used
‘to impose class arbitration in the absence of the parties’ consent’ ”].) Instead,
Uber points to the court’s statement that its holding is “consistent with a long
line of cases holding that the FAA provides the default rule for resolving
certain ambiguities in arbitration agreements. For example, we have
repeatedly held that ambiguities about the scope of an arbitration agreement
must be resolved in favor of arbitration.” (Lamps Plus, at p. 189.)12 But
12 The basis for the presumption is unclear. The United States
Supreme Court case that articulated the presumption, Moses H. Cone
Memorial Hospital v. Mercury Construction Corp. (1983) 460 U.S. 1, cited a
number of prior federal circuit decisions and based the presumption on the
“liberal federal policy favoring arbitration agreements” in section 2 of the
FAA. (Moses, at pp. 24–25.) But section 2 only provides for the enforceability
of arbitration agreements and it is well established that “[t]he federal policy is
about treating arbitration contracts like all others, not about fostering
arbitration.” (Morgan, supra, 596 U.S. at p. 418; see also Calderon v. Sixt
Rent a Car, LLC (11th Cir. 2021) 5 F.4th 1204, 1215–1221 (conc. opn. of
Newsom, J.) [forcefully criticizing “the Moses H. Cone rule”].)
In addition, the presumption in favor of arbitration may be less broad
than the parties assume. The presumption does not apply in determining the
existence of an arbitration agreement (see fn. 8, ante); the presumption does
not apply in determining whether an arbitrator or court decides arbitrability
(see, e.g., First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944);
and Granite Rock Co. v. Internat. Brotherhood of Teamsters (2010) 561 U.S.
287 (Granite Rock) states the presumption applies “only where a validly
formed and enforceable arbitration agreement is ambiguous about whether it
covers the dispute at hand” (id. at p. 301). It is consistent with those
determinations to conclude that the presumption in favor of arbitration may
not apply to severability, a procedural issue involved in this case. (See
Morgan, supra, 596 U.S. at p. 419 [“the text of the FAA makes clear that
31
Lamps Plus did not suggest that the presumption in favor of arbitration
required preemption of the contra proferentem rule where its application does
not disfavor arbitration but instead reinforces the requirement of consent.
It is well established that the FAA “preempts any state rule
discriminating on its face against arbitration” and “also displaces any rule
that covertly accomplishes the same objective by disfavoring contracts that
. . . have the defining features of arbitration agreements.” (Kindred Nursing
Centers L.P. v. Clark (2017) 581 U.S. 246, 251; see also DIRECTV, Inc. v.
Imburgia (2015) 577 U.S. 47, 58 [rejecting lower court’s application of contra
proferentem rule not because the rule is inconsistent with the FAA but
because it was not applied neutrally].) Lamps Plus expanded the scope of
FAA preemption where application of the contra proferentem rule, despite its
neutrality, resulted in imposition of classwide arbitration without consent.
As the court explained, “At issue in this case is the interaction between a
state contract principle for addressing ambiguity and a ‘rule[] of fundamental
importance’ under the FAA, namely, that arbitration ‘is a matter of consent,
not coercion.’ ” (Lamps Plus, supra, 587 U.S. at pp. 183–184.)
Lamps Plus’s centering of the principle of consent clarifies that the
FAA does not preempt a neutral state contract rule like contra proferentem
where application of the rule ensures there is consent to arbitrate a dispute.
As the United States Supreme Court has repeatedly emphasized,
“[a]rbitration is strictly ‘a matter of consent,’ [citation], and thus ‘is a way to
courts are not to create arbitration-specific procedural rules”]; Volt
Information Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ.
(1989) 489 U.S. 468, 476 (1989) [“There is no federal policy favoring
arbitration under a certain set of procedural rules”]; Kristian v. Comcast
Corp. (1st Cir. 2006) 446 F.3d 25, 62 (Kristian) [“application of the class
arbitration bar’s savings clause does not raise a question about the scope of
the arbitration agreement”].)
32
resolve those disputes—but only those disputes—that the parties have agreed
to submit to arbitration.’ ” (Granite Rock, supra, 561 U.S. at p. 299; accord,
Suski, supra, 602 U.S. at p. 148; Viking River, supra, 596 U.S. at p. 651;
Lamps Plus, supra, 587 U.S. at p. 184.) “ ‘[T]he federal policy favoring
arbitration’ ” is “merely an acknowledgment of the FAA’s commitment to
‘overrule the judiciary’s longstanding refusal to enforce agreements to
arbitrate and to place such agreements upon the same footing as other
contracts.’ ” (Granite Rock, at p. 302; see also Morgan, supra, 596 U.S. at pp.
418–419.) Granite Rock cautioned, “We have applied the presumption
favoring arbitration . . . only where it reflects, and derives its legitimacy
from, a judicial conclusion that arbitration of a particular dispute is what the
parties intended because their express agreement to arbitrate [is] . . . best
construed to encompass the dispute.” (Granite Rock, at p. 303.)
As we have already established, an arbitration agreement is properly
construed using neutral state contract laws, and in California that includes
the contra proferentem rule. Because the rule is “triggered only after a court
determines that it cannot discern the intent of the parties” (Lamps Plus,
supra, 587 U.S. at p. 187), the rule ensures that a party is not obligated to
arbitrate a dispute it did not actually agree to arbitrate. This is especially
true in cases, like the present one, involving an adhesive contract, where the
nondrafter lacked an opportunity to clarify ambiguities during contract
negotiation. (See Sandquist, supra, 1 Cal.5th at p. 248.) Application of the
rule thus effectuates the “first principle” of consent repeatedly emphasized by
the United States Supreme Court, including in Lamps Plus. (See also Viking
River, supra, 596 U.S. at pp. 659–660 [“The most basic corollary of the
principle that arbitration is a matter of consent is that ‘a party can be forced
33
to arbitrate only those issues it specifically has agreed to submit to
arbitration’ ”].)13
Applying state law, the California Supreme Court reached a similar
conclusion in Victoria, supra, 40 Cal.3d 734 and, recently, in Fuentes v.
Empire Nissan, Inc. (2026) 19 Cal.5th 93 (Fuentes). In Victoria, the court
concluded the contra proferentem rule took precedence over the state
presumption in favor of arbitration in interpreting a standard form
agreement. (Id. at p. 744; accord, Morales v. Superior Court (2026) 122
Cal.App.5th 239, 248.) The court explained that construing such a contract
against the drafter “ ‘does not serve as a mere tie-breaker.’ [Citation.]
Instead, ‘it rests upon fundamental considerations of policy[, in] view of the
somewhat fictional nature of intent in standardized contracts . . . .’ ”
(Victoria, at p. 744.) Like the United States Supreme Court in Granite Rock
and other cases, Victoria observed, “Although ‘[t]he law favors contracts for
arbitration of disputes between parties’ [citation], ‘ “there is no policy
compelling persons to accept arbitration of controversies which they have not
agreed to arbitrate.” ’ ” (Victoria, at p. 744; see also Sandquist, supra, 1
Cal.5th at p. 252.)
13 Lamps Plus stated that the court had “emphasized” the
“ ‘foundational FAA principle’ ” of consent “many times,” citing six prior
Supreme Court decisions going back decades. (Lamps Plus, supra, 587 U.S.
at p. 184.) The court explained, “Consent is essential under the FAA because
arbitrators wield only the authority they are given. That is, they derive their
‘powers from the parties’ agreement to forgo the legal process and submit
their disputes to private dispute resolution.’ [Citation.] Parties may
generally shape such agreements to their liking by specifying with whom
they will arbitrate, the issues subject to arbitration, the rules by which they
will arbitrate, and the arbitrators who will resolve their disputes. [Citation.]
Whatever they settle on, the task for courts and arbitrators at bottom
remains the same: ‘to give effect to the intent of the parties.’ ” (Ibid.)
34
In Fuentes, supra, 19 Cal.5th 93, the California Supreme Court
similarly concluded the contra proferentem rule takes precedence over the
state presumption in favor of arbitration.14 In that case, an employer and
employee entered into an arbitration agreement and subsequent
“confidentiality agreements,” and there was an “ambiguity concerning
whether the parties intended claims under the confidentiality agreements to
be subject to mandatory arbitration.” (Fuentes, at p. 109.) The Court of
Appeal applied the presumption in favor of arbitration in resolving the
ambiguity. (Id. at p. 111.) Fuentes concluded the Court of Appeal “erred in
applying a presumption in favor of arbitration.” (Ibid.) At the outset, the
court emphasized that “Arbitration ‘ “ ‘ “is strictly a matter of consent” ’ ” ’—
absent an agreement to arbitrate, the default rule is that parties may litigate
breach of contract claims in court.” (Id. at p. 109.) In rejecting the Court of
Appeal’s reliance on the presumption, the court reasoned (like the United
States Supreme Court in Morgan, Granite Rock, and other cases) that “ ‘the
policy “ ‘favoring’ ” arbitration is not one of promoting arbitration over
litigation, but instead of ensuring that arbitration agreements are not
disfavored, i.e., that they are treated like other contracts.’ ” (Id. at p. 110.)
“The Court of Appeal contravened this equal treatment principle by relying
on ‘the principle that the law strongly favors arbitration’ to support its
interpretation of the confidentiality agreements as mandating arbitration.”
(Ibid.) Instead, the Court of Appeal should have applied the contra
14 The Fuentes decision does not reference the FAA, so we presume the
decision was decided under California law.
35
proferentem rule and “resolv[ed] ambiguities in meaning against the drafting
party.” (Ibid.)15
Although Victoria and Fuentes were decided under California law, Uber
has not argued that consent is critical under the California policy but
secondary under the federal policy. That is, Uber has not argued consent is
less important under the FAA. We are unaware of any basis for such a
conclusion. To the contrary, as noted previously, Lamps Plus emphasized
that consent is the “ ‘first principle that underscores all of [the FAA]
arbitration decisions’ ” (Lamps Plus, supra, 587 U.S. at p. 184) and California
decisions characterize the California policy as equivalent to the federal policy
(Sandquist, supra, 1 Cal.5th at p. 247; Wagner Construction Co. v. Pacific
Mechanical Corp. (2007) 41 Cal.4th 19, 25–26).
Uber cites to Erickson v. Aetna Health Plans of California, Inc. (1999)
71 Cal.App.4th 646, which stated that the contra proferentem rule “is
subordinate to the policy favoring arbitration when construing FAA
agreements.” (Id. at p. 658, citing Chan v. Drexel Burnham Lambert,
Inc. (1986) 178 Cal.App.3d 632, 639.) To similar effect are federal circuit
court decisions that have declined to apply the contra proferentem rule. (See
Huffman v. Hilltop Companies, LLC (6th Cir. 2014) 747 F.3d 391, 396–397;
Dialysis Access Center, LLC v. RMS Lifeline, Inc. (1st Cir. 2011) 638 F.3d
15 The Maine and Florida high courts reached the same conclusion as
the California Supreme Court in Victoria and Fuentes. (See Barrett v.
McDonald Investments, Inc. (Me. 2005) 870 A.2d 146, 149–152 (Barrett);
Seifert v. U.S. Home Corp. (Fla.1999) 750 So.2d 633, 641–642.) In Barrett,
the Supreme Judicial Court of Maine acknowledged that “[t]he presumption
in favor of substantive arbitrability advances the Maine Legislature’s ‘strong
policy favoring arbitration,’ ” but held that “the balance tips in favor of
applying the equitable rule favoring the construction of the contract against
the drafter” in cases involving a contract of adhesion. (Barrett, at pp. 149,
151.)
36
367, 382, fn. 14; Hudson v. ConAgra Poultry Co. (8th Cir. 2007) 484 F.3d 496,
503; Kristian, supra, 446 F.3d at p. 35; McKee v. Home Buyers Warranty
Corp. II (5th Cir. 1995) 45 F.3d 981, 984–985.) However, all of those
decisions preceded Lamps Plus and therefore necessarily did not grapple with
the decision’s teaching that ambiguous contract language is insufficient to
establish consent under the FAA. Nor did those cases otherwise consider
whether the federal presumption preempts the contra proferentem rule where
application of the rule effectuates consent.
California cases subsequent to Lamps Plus are consistent with our
conclusion that the contra proferentem rule applies here. The decision in
Western Bagel, supra, 66 Cal.App.5th 649 extended Lamps Plus to preclude
application of the contra proferentem rule to impose nonbinding arbitration
because a binding decision is a “ ‘ “fundamental attribute[] of arbitration” ’ ”
under the FAA. (Western Bagel, at pp. 663–665.) The court explained, “Just
as ‘individual arbitration’ is a ‘ “fundamental attribute[] of arbitration” ’
‘envisioned by the FAA’ (i.e., because of, inter alia, its ‘lower costs, greater
efficiency and speed’) [citation], so too is ‘the expectation “that the arbitrator’s
decision will be both binding and final[,]” ’ given that this characteristic
safeguards ‘ “arbitral efficiency” ’ too.” (Id. at pp. 665–666.) Other California
decisions cite Lamps Plus but do not construe ambiguous agreements. (See
Ford, supra, 110 Cal.App.5th at p. 570 [agreement unambiguous]; Barrera v.
Apple American Group LLC (2023) 95 Cal.App.5th 63, 83, 85–86 [same];
Westmoreland v. Kindercare Education LLC (2023) 90 Cal.App.5th 967, 979,
981 [same]; Vaughn, supra, 87 Cal.App.5th at pp. 219–220 [same].)16
16 In Vaughn, supra, 87 Cal.App.5th at page 218, footnote 5, this court
stated that Lamps Plus mandates “a different rule” than the contra
proferentem rule applied in Sandquist, supra, 1 Cal.5th 233. That statement
37
Similarly, in Toothman v. Redwood Toxicology Laboratory, Inc. (2026) 120
Cal.App.5th 412, the court stated it was unnecessary to decide whether it was
required to “resolve any ambiguities in favor of arbitration” because the
agreement was not ambiguous. (Id. at p. 417.)17
Finally, Uber argues that plaintiffs have not contended the Agreement
is unconscionable or shown that formation of the Agreement involved “a high
degree of procedural unconscionability.” (Fuentes, supra, 19 Cal.5th at
p. 110.) But Uber does not deny that the Agreement is a contract of adhesion,
and the contra proferentem rule applies “ ‘ “with peculiar force in the case of a
contract of adhesion.” ’ ” (Sandquist, supra, 1 Cal.5th at p. 248; accord,
Fuentes, at p. 110; 11 Williston on Contracts (4th ed. 2026) § 32:12).18
was dicta, because the agreement in the case was not ambiguous. (Vaughn,
at pp. 219–220.) We now disavow that overly broad dicta.
17 Another recent case, Srivastava v. BMW of North America, LLC
(2026) 122 Cal.App.5th 944, 951, references the California law presumption
in favor of arbitration without discussing Lamps Plus or the contra
proferentem rule, or acknowledging the Victoria, Sandquist, or Fuentes
decisions.
18 On its face, section 1654 does not require indicia of procedural
unconscionability or a contract of adhesion to justify application of the contra
proferentem rule. (But see 11 Williston on Contracts (4th ed. 2026) § 32:12
[stating that application of the contra proferentem rule may vary based on
“the degree of sophistication of the contracting parties or the degree to which
the contract was negotiated”].) We note that the Maine high court observed
that its holding in favor of the contra proferentem rule “does not affect the
presumption favoring arbitrability when such provisions are actually
negotiated, or when parties of equal bargaining power are involved. We
merely hold that when a party drafts an agreement requiring arbitration,
and offers it to individuals on a take-it-or-leave-it basis, the drafter bears the
risk if its chosen language is found to be ambiguous.” (Barrett, supra, 870
A.2d at p. 152.)
38
Nothing in the United States Supreme Court’s FAA case law generally,
or the court’s articulation of the presumption in favor of arbitration
specifically, requires this court to conclude the FAA preempts a state rule of
contract interpretation that treats arbitration agreements like other
agreements and, as applied to contracts of adhesion, effectuates the principle
of consent. Because the contra proferentem rule is not preempted by the FAA
in this case, we construe the ambiguous Agreement against the drafter, Uber,
and conclude as a matter of California contract law that the parties did not
agree to piecemeal resolution of the causes of action in the complaint.
DISPOSITION
The trial court’s order is affirmed. Costs on appeal are awarded to
plaintiffs.
SIMONS, Acting P. J.
We concur.
BURNS, J.
CHOU, J.
(A174376)
39
Dove A. Bogguess et al. v. Uber Technologies, Inc. (A174376)
Trial Court: Superior Court of California, City and County of San
Franciso
Trial Judge: Hon. Jeffrey S. Ross
Counsel: Gibson, Dunn & Crutcher, Joseph E. Barakat, Theane D.
Evangelis, Bradley J. Hamburger, Heather Richardson and
Brandon J. Stoker for Defendant and Appellant.
Josephine K. Petrick for the Chamber of Commerce of the
United States of America as Amicus Curiae on behalf of
Defendant and Appellant.
Leventhal Stanley & Taylor, Mara Leventhal, Christopher
J. Stanley, Benjamin A. Taylor; Kessler Topaz Meltzer &
Check, Jennifer L. Joost, Jordan E. Jacobson, Matthew
Macken, Melissa L. Yeates; Joseph Hage Aaronson and
Gregory P. Joseph for Plaintiffs and Respondents.
40