Mulvany v. Live Nation Entertainment, Inc.

Filing 40

ORDER DENYING 31 MOTION TO COMPEL ARBITRATION. Signed by Judge Beth Labson Freeman on 12/14/2016.(blflc1S, COURT STAFF) (Filed on 12/14/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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DANA MULVANY,

Case No. 15-cv-04371-BLF

Plaintiff,
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v.

ORDER DENYING MOTION TO
COMPEL ARBITRATION

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LIVE NATION ENTERTAINMENT, INC.,

[Re: ECF 31]

Defendant.
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United States District Court
Northern District of California

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Defendant Live Nation Entertainment, Inc. moves to compel arbitration of Plaintiff Dana

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Mulvany’s claims that Live Nation failed to accommodate her disability when she attended a

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comedy festival at Live Nation’s venue. Because Live Nation has not submitted a copy of the

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arbitration agreement or any evidence that Mulvany agreed to arbitrate her claims, the motion is

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DENIED.

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I.

BACKGROUND
In August 2014, Mulvany bought two tickets from third party Groupon, Inc. to attend the

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Oddball Comedy Festival at the Shoreline Amphitheatre in Mountain View, California. First

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Am’d Compl. (“FAC”) ¶ 12, ECF 26. Immediately after buying the tickets, Mulvany contacted

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Live Nation, which owns and operates the Shoreline Amphitheatre, to request accommodation for

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her disability. Id. ¶ 13. Mulvany is deaf in her left ear and has significant hearing loss in her right

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ear. Id. ¶ 11. Live Nation agreed to provide Communication Access Realtime Translation

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(“CART”) for the Festival. Id. ¶ 17. Mulvany claims that the CART services provided at the

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Festival’s main stage were completely inadequate, no CART services were provided at the

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Festival’s second stage, and no captioning was provided on the video monitors located in the

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seating and vendor areas. Id. ¶¶ 18-22. As a result, Mulvany and her hearing-impaired guest were

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not able to enjoy the Festival. Id. ¶¶ 18-25.

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Mulvany filed this action in the Small Claims Court of the Santa Clara County Superior

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Court on September 11, 2015, asserting that Live Nation’s conduct violated the Americans with

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Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”). Small Claims

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Compl., Exh. A to Notice of Removal, ECF 1. Live Nation removed the action to federal district

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court on the basis of federal question jurisdiction. Notice of Removal, ECF 1. Mulvany filed the

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operative first amended complaint (“FAC”) on May 24, 2016, claiming violations of the ADA,

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Unruh Act, California’s Disabled Persons Act, and California’s Unfair Competition Law. Live

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Nation answered the FAC on June 28, 2016 and it filed the present motion to compel arbitration

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on September 1, 2016.

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II.

DISCUSSION

United States District Court
Northern District of California

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Live Nation moves to compel arbitration of Mulvany’s claims against it based upon an

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arbitration provision contained Groupon’s Terms of Use. According to Live Nation, Mulvany

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agreed to the Terms of Use when she created her Groupon account and again when she completed

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her online ticket purchase through Groupon’s website. Live Nation asserts that the Terms of Use

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include an arbitration provision which applies not only to disputes between Mulvany and Groupon

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but also to the present dispute between Mulvany and Live Nation.

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“[T]he party moving to compel arbitration has the burden to prove, by a preponderance of

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the evidence, that an agreement to arbitrate exists.” Amaya v. Spark Energy Gas, LLC, No. 15-cv-

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02326-JSW, 2016 WL 1410755, at *3 (N.D. Cal. April 11, 2016); see also Sanford v.

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Memberworks, Inc., 483 F.3d 956, 962 (9th Cir. 2007) (“It is axiomatic that arbitration is a matter

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of contract and a party cannot be required to submit any dispute which he has not agreed so to

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submit.”) (internal quotation marks, citation, and alteration omitted); Aoki v. Gilbert, No. 11-cv-

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02797-MCE-CKD, 2013 WL 1156495, at *5 (E.D. Cal. Mar. 19, 2013) (“Because the existence of

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an arbitration agreement is a statutory prerequisite to granting a petition to compel arbitration, the

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party seeking to enforce the agreement bears the burden of proving the agreement exists by a

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preponderance of the evidence.”).

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Live Nation has not met this burden, as it has not submitted any evidence that Mulvany

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agreed to Groupon’s Terms of Use or that said Terms of Use contain an agreement to arbitrate.
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Live Nation attempts to prove the existence of an agreement to arbitrate by asking this Court to

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take judicial notice of filings in another case, Keena v. Groupon, Inc., which was litigated in the

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United States District Court for the Western District of North Carolina. See Def.’s Request for

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Judicial Notice, ECF 32. Those filings include evidence that the North Carolina plaintiff, Ms.

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Keena, agreed to Groupon’s Terms of Use in February 2015 and that those Terms of Use included

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an arbitration agreement. See id. Live Nation requests this Court to infer from the North Carolina

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documents regarding Ms. Keena’s agreement to Groupon’s Terms of Use in February 2015 that

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Mulvany agreed to identical terms six months earlier in August 2014.
Live Nation’s request for judicial notice is DENIED. While the Court “may take judicial

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notice of the existence of unrelated court documents . . . it will not take judicial notice of such

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United States District Court
Northern District of California

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documents for the truth of the matter asserted therein.” In re Bare Escentuals, Inc. Sec. Lit., 745

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F. Supp. 2d 1052, 1067 (N.D. Cal. 2010). Moreover, even if the Court could accept the North

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Carolina filings for the truth of the matters asserted therein, Ms. Keena’s agreement to arbitrate

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proves nothing with respect to whether Mulvany agreed to arbitrate.

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III.

ORDER

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For the reasons discussed above,

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Defendant’s motion to compel arbitration is DENIED.

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Dated: December 14, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

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