CHARLES TILLAGE V. COMCAST CORPORATION, No. 18-15288 (9th Cir. 2019)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUN 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHARLES E. TILLAGE; JOSEPH M. LOOMIS, No. 18-15288 D.C. No. 3:17-cv-06477-VC Plaintiffs-Appellees, MEMORANDUM* v. COMCAST CORPORATION; COMCAST CABLE COMMUNICATIONS, LLC, Defendants-Appellants. Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding Argued and Submitted February 12, 2019 San Francisco, California Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges. Comcast Corporation (“Comcast”) appeals the district court’s order denying Comcast’s motion to compel arbitration. We have jurisdiction under 9 U.S.C. § 16(a)(1) and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. For the reasons set forth in our concurrently filed opinion in Blair v. Rent-A-Center, Inc., No. 17-17221, we hold that California’s McGill rule is not preempted by the Federal Arbitration Act. In light of this holding, we hold that the arbitration agreement between Comcast and plaintiffs Charles Tillage and Joseph Loomis is null and void in its entirety. Section 13(h) of the parties’ subscriber agreement purports to waive plaintiffs’ rights to pursue public injunctive relief in any forum and so is unenforceable under California law. See McGill v. Citibank, 393 P.3d 85, 94 (Cal. 2017). Section 13(h) also provides that “THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT.” This non-severability clause results in the invalidation of the entire arbitration agreement. Comcast argues that the opt-out clause of their subscriber agreement removes it from McGill’s coverage because the subscriber agreement waives a person’s right to pursue a public injunction only if he or she agrees to arbitrate. That argument fails, as McGill applies to any consensual waiver of public injunctive relief, irrespective of how the parties choose to waive that relief. 393 P.3d at 93–94 (quoting Cal. Civ. Code § 3513). 2 AFFIRMED. 3