1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN AYERS, on behalf of herself, and Case No.: 3:25-cv-01219-CAB-VET all others similarly situated, 12

ORDER:

Plaintiff, 13 (1) HOLDING MOTION TO v. COMPEL ARBITRATION IN 14 ABEYANCE [Doc. No. 8]

NATIONAL SENIOR BENEFIT

15 ADVISORS, INC. d/b/a NSBA (2) REQUIRING LIMITED 16 INSURANCE AGENCY,

DISCOVERY AND TRIAL ON

17 Defendant. ARBITRABILITY

18 19 Susan Ayers (“Plaintiff”) filed a putative class action against National Senior Benefit 20 Advisors, Inc. d/b/a NSBA Insurance Agency (“NSBA” or “Defendant”) alleging that 21 Defendant violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227, 22 et seq., and related regulations, by making unsolicited and unwanted telephone calls to her 23 and the members of the putative class. [See Doc. No. 1 at 2–3.] Now before the Court is 24 Defendant’s motion to compel arbitration. [Doc. No. 8.] For the reasons set forth below, 25 the Court will hold Defendant’s motion to compel arbitration in abeyance to allow for 26 limited discovery and a trial on whether Plaintiff visited the website in question and 27 assented to the contract containing the alleged arbitration agreement. 28 1 I. BACKGROUND 2 “Voluminous consumer complaints about abuses of telephone technology . . . 3 prompted Congress to pass the TCPA” in 1991. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 4 368, 370–71 (2012). The TCPA restricts a number of telemarketing practices deemed 5 invasive of privacy without a consumer’s prior express and written consent to be contacted. 6 Id. The restricted telemarketing practices include calling homes before 8 a.m. or after 9 7 p.m., using artificial or prerecorded voices in messages to wireless devices or cellular 8 telephones, and calling members of the National Do-Not Call Registry. [Doc. No. 1 ¶ 29.] 9 Plaintiff alleges that she and others like her received “unsolicited telemarketing 10 phone calls [from Defendant] without the prior written express consent of the call 11 recipients.” [Id. at ¶ 35.] Though Defendant never directly called Plaintiff, Defendant says 12 that Plaintiff was transferred to a representative of Defendant after being called by a third 13 party and expressing interest in speaking with Defendant. [Doc. No. 8-1 at 7.] 14 Defendant also contends that Plaintiff did provide prior express written consent to 15 be contacted by visiting a website owned and operated by a marketing partner of Defendant 16 —the American Survey —and submitting her information. [Id.] The following are the 17 steps Defendant alleges that a user like the Plaintiff would take when visiting the American 18 Survey website (“the Site”). First, a user must enter or confirm her email and then click 19 “Continue” to enter the Site. [Id. at 8.] Above the “Continue” button, the following 20 language is displayed: 21 No purchase necessary to play or win. By clicking the button below, I confirm I am over 18 and I agree to: (i) the Privacy Policy and Terms and Conditions; 22 (ii) receive daily email from us, our affiliated companies, and unaffiliated 23 third parties, which can unsubscribe from at any time; and (iii) How It Works. I confirm I am entering the The American Survey sweepstakes and agree to 24 the Official Contest Rules. 25 [Id.] The screenshot below shows how this would have been displayed: 26

27 28 BE)

9 ore) ie) = 10 After clicking “Continue,” a user inputs additional information, including first name,

last name, street address, zip code, date of birth, telephone number. [/d. at 9.] Then the

3 user is presented with a series of questions, including a question about the user’s health

14 insurance coverage. At the bottom of the screen the user is informed that: By clicking an option above except for ‘No Call / Skip This Offer’, I provide 15 my consent directly to Health Advisors ... and up to 8 marketing partners to 16 call and text me about health insurance . . . via autodialer and/or artificial/prerecorded voice at [phone number] until such time that I revoke 17 my consent. Consent isn’t required — I can proceed without consenting by 18 clicking “No Call/Skip This Offer’. I also have read and agree to the Terms 19 of Use (which requires arbitration) linked near the bottom of this page[.] 209 || at 10 (emphasis added). | 21 22 93 24 25 26 27 2g

1 This step is shown in the screenshot below:

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13 14 Defendant’s records show that Plaintiff's information was submitted on July 16, 2024 15 at 12:40 p.m. and that she selected the “private insurance” button. [/d. at 10.] Plaintiff 16 denies ever visiting this site or providing her consent. [Doc. No. 10 at 18—20.] 7 II. LEGAL STANDARDS 18 Section 4 of the Federal Arbitration Act (“FAA”) permits “a party aggrieved by the 19 alleged failure, neglect, or refusal of another to arbitrate under a written agreement for 0 arbitration [to] petition any United States District Court .. . for an order directing that... arbitration proceed in the manner provided for in [the arbitration] agreement.” 9 U.S.C. § 4. On a motion to compel arbitration, the court’s role is “limited to determining (1) 3 whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement 34 || encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 25 1126, 1130 (9th Cir. 2000). %6 “TA] party who contests the making of a contract containing an arbitration provision 17 cannot be compelled to arbitrate the threshold issue of the existence of an agreement to 28 arbitrate. Only a court can make that decision.” Three Valleys Mun. Water Dist. v. E.F.

1 Hutton & Co., 925 F.2d 1136, 1140–41 (9th Cir. 1991). For this inquiry, “the court applies 2 a standard similar to the summary judgment standard of Fed. R. Civ. Proc. 56.” McCarthy 3 v. Providential Corp., No. 94-CV-0627, 1994 WL 387852, at *2 (N.D. Cal. July 19, 1994). 4 Thus, “[o]nly when there is no genuine issue of fact concerning the formation of an 5 [arbitration] agreement should the court decide as a matter of law that the parties did or did 6 not enter into such an agreement.” Three Valleys, 925 F.2d at 1141 (quoting Par–Knit 7 Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51 (3d Cir.1980)). Otherwise, the issue 8 should be submitted to a jury. Id. 9 III. ANALYSIS 10 The threshold issue here is whether a valid agreement to arbitrate exists, given that— 11 despite Defendant’s evidence to the contrary—Plaintiff claims she never visited the 12 website(s) in question, never submitted her contact information, and never agreed to be 13 contacted. [See Doc. No. 10 at 18–21.] 14 Defendant submitted extensive evidence that the websites in question have records 15 of over sixty submissions containing Plaintiff’s contact and other identifying information. 16 [See Doc. No. 8-2 ¶¶ 29–32; Doc. No. 8-3.] Plaintiff counters that she never visited those 17 websites, nor did she “enter [her] information, or authorize[] anyone else to enter [her] 18 information, into [the websites in question].” [Doc. No. 10-1 ¶¶ 7–8.] Plaintiff also attests 19 that she was not in the location of the identified IP address on the relevant date and time; 20 instead, she was “at work where [she] do[es] not use [her] cellular phone until the end of 21 the workday.” [Id. at ¶¶ 4–6.] Defendant argues that such conclusory statements are not 22 only insufficient to contest the detailed evidence provided, but also contradicted by the fact 23 that the identified IP addresses correspond to Plaintiff’s employer. [See Doc. No. 12 at 3.] 24 The Court agrees that Plaintiff’s conclusory declaration is extremely thin. However, 25 the Court must give Plaintiff the benefit of all reasonable doubts and inferences at this 26 stage. In light of Plaintiff’s statements that she was at work in a different location and 27 without her cell phone when the alleged submission occurred, a material fact remains in 28 dispute. Moreover, though the Court finds Plaintiff’s statements questionable in light of 1 Defendant’s detailed evidence, credibility determinations are “exclusively within the 2 province of the factfinder at trial, not the district court on summary judgment.” 3 Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1036 (9th Cir. 2005). 4 In such a circumstance, 9 U.S.C. § 4 provides that “[i]f the making of the arbitration 5 agreement . . . be in issue, the court shall proceed summarily to the trial thereof.” See also 6 Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, 672 (9th Cir. 2021) (“[O]nce a district 7 court concludes that there are genuine disputes of material fact as to whether the parties 8 formed an arbitration agreement, the court must proceed without delay to a trial on 9 arbitrability and hold any motion to compel arbitration in abeyance until the factual issues 10 have been resolved.”). 11 To prepare for trial, if necessary, and given that the only evidence presented to date 12 on the disputed contract-formation question is in the form of the parties’ affidavits on the 13 motion to compel arbitration, the Court ORDERS the parties to engage in targeted 14 discovery on the disputed contract-formation question. Knapke v. PeopleConnect, Inc, 38 15 F.4th 824, 833 (9th Cir. 2022) (“[W]e have confirmed that the FAA’s procedure mirrors 16 the three phases of federal civil lawsuits: a motion to compel arbitration akin to a motion 17 to dismiss; followed by optional discovery before summary judgment, if the motion is 18 denied; followed by a mini-trial, if necessary.”); accord Boykin v. Fam. Dollar Stores of 19 Michigan, LLC, 3 F.4th 832, 844 (6th Cir. 2021). 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION 2 Based on the foregoing, the Court holds Defendant’s motion to compel arbitration, 3 ||[Doc. No. 8], in abeyance pending targeted discovery on the disputed contract-formation 4 question. Following the completion of discovery, the Court may proceed to a trial limited 5 || to this issue in accordance with 9 U.S.C. § 4, if necessary. 6 The parties are directed to contact the chambers of Magistrate Judge Torres forthwith 7 ||to enter a discovery and scheduling order in accordance with this Order. 8 It is SO ORDERED.

10 || Dated: December 12, 2025 Hon. Cathy Ann Bencivengo United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28