I literally just edited a brief on this exact subject last week, so I know a fair piece about when non-signatories to an arbitration agreement can move to compel arbitration against a signatory, as well as whether that issue gets decided by a court or the arbitrator. The correct answer depends in part on what precisely the text of the arbitration provision says, and the doctrinal issues are not all that straightforward (or at least less straightforward, in my view, than it might appear to readers of this opinion by the Court of Appeal).
It's true, though, that not all non-signatories can successfully move to compel arbitration, and that in many cases, that issue gets decided by a court, rather than an arbitrator, even if there's a delegation clause in the underlying arbitration provision. Justice Wiley is also correct when he says that in deciding that issue, it's critical to look at the text of that provision, and criticizes some other cases for not including the relevant contractual language in their opinions.
Justice Wiley doesn't make that same mistake, and quotes the arbitration provision in full at the outset of his opinion. (For background: Plaintiff bought some groceries from Ralphs through Instacart, the Instacart contract contains an arbitration provision, Plaintiff subsequently sued Ralphs, and Ralphs moved to compel arbitration pursuant to Plaintiff's contract with Instacart.)
Here's what the arbitration provision says:
“Mandatory Arbitration: If we’re unable to work out a solution amicably, both you and Instacart agree to resolve through binding arbitration, rather than in court, any dispute, controversy, or claim arising at any time out of or relating to: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Services, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Services, including any goods or services purchased or sold through, by, or using the Services; or (iv) any other aspect of your relationship or transactions with Instacart as a consumer.”
There's also a separate delegation clause that provides that any dispute as to arbitrability shall generally be decided by the arbitrator, not a court.
You can probably figure out the underlying textual dispute. Plaintiff contends that the arbitration provision only applies to disputes between him and Instacart, whereas Ralph contends that this provision applies to "any dispute" (including those with Ralphs) that "arise[s] out of or relate[s] to . . . any transactions through [Instacart] or . . . any goods or services purchased [] through Instacart," which these (allegedly) were since the dispute definitely involves the (allegedly false) price paid for the goods purchased through Instacart.
That's a complicated textual dispute, and you could see the arguments on both sides.
Here's the part I sincerely don't get, though.
Justice Wiley quotes the textual language of the arbitration provision in full, and reminds us that the text of that provision is critical (and, indeed, allegedly dispositive here). But here's the money quote at the end of page 7 of the opinion that explains why plaintiff didn't agree to arbitrate any dispute with Ralphs:
"With our italics, Instacart’s contract language was that the arbitration agreement 'applies to and governs any dispute, controversy, or claim between you and Instacart.' But Mahram had no dispute with Instacart."
Wait, what? That's supposed to be quoting the arbitration agreement -- the whole thing's in quotes. But what's in the quotes is not in the arbitration provision that Justice Wiley sets forth earlier in the opinion. the phrase "applies to and governs" appears nowhere in the opinion other than in the quote on page 7, and certainly not in the arbitration provision quoted earlier. (I double-checked: the word "applies" does not even appear anywhere else in the opinion other than in the quote on page 7.) Similarly, the only place the words "between you and Instacart" appear -- the ones that Justice Wiley emphasizes -- is in the belated quote, not in the original arbitration provision quoted in full at the outset.
So I'm legitimately confused. Does this quote come from somewhere else in the contract, somewhere never before mentioned in the opinion (and not in the original arbitration provision)? Or is this not an actual quote, but rather a purported summary of what the arbitration provision means (even though it's surrounded by quotes in the opinion)?
Maybe I'm missing something. Because if the contract actually said that the only thing that was agreed to be arbitration is what's listed in the quote on page 7, yeah, that's pretty good evidence that disputes with Ralphs aren't included. But if that language is not, in fact, in the contract, then you've got to go through the actual text and explain why Ralphs is wrong that, textually, the dispute indeed arises out of the purchase of goods through Instacart, so the arbitration provision at least textually applies to that.
Again, maybe there are two different arbitration provisions, or maybe what the Court of Appeal puts in quotes is not actually a quote. Those seem the likely possibilities, anyway. But I can't tell which is true, and it matters. Because the textual analysis is a lot more complicated if the contract doesn't actually contain that latter quote. (And is a lot easier if it does!)
