Wing v. Cingular Wireless 5/18/05 CA1/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A105906

Case Date: 08/24/2005

Preview:Filed 5/18/05 Wing v. Cingular Wireless CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

JAIME WING, et al., Plaintiffs and Respondents, v. CINGULAR WIRELESS, LLC, Defendant and Appellant. (San Mateo County Super. Ct. No. 432021) A105906

Plaintiff Jaime Wing and two coplaintiffs, William Bucy and Michael Mitchell, filed suit against Cingular and other wireless service providers to challenge the practice of charging customers a fee for local number portability. Of the three named plaintiffs, only Wing is a customer of Cingular. Cingular petitioned to compel arbitration of plaintiff Wing's claims based upon an arbitration clause included among the terms and conditions of the wireless service agreement.1 The trial court denied the petition, citing two grounds: (1) Cingular failed to establish the existence of an agreement to arbitrate between Cingular and Wing, and (2) the alleged arbitration agreement is unconscionable and unenforceable. In this appeal by Cingular, we reverse the order denying arbitration.

The plaintiffs' lawsuit named other wireless service providers as well, but this appeal concerns only Cingular. Appeals by other service providers arising from the same lawsuit are pending before us in Bucy v. AT&T, A105910, and Mitchell v. Sprint, A105911. Cingular sought to compel arbitration only by plaintiff Wing because Wing is the only named plaintiff who is a Cingular customer. 1

1

FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Wing purchased a wireless telephone from the Costco store in South San Francisco in April 2001. The phone came in a shrink-wrapped box inside a cardboard sleeve, and on that cardboard sleeve were instructions for activating wireless service with Cingular. Beneath the shrink wrap on top of the box were several documents, including a notice advising the customer not to open the box until service had been activated. Also on top of the box were a welcome letter, the written terms and conditions of Cingular's wireless service, and a handbook of Cingular services. The written terms and conditions of Cingular's wireless service included an arbitration clause requiring arbitration of all disputes arising out of the wireless service agreement. In April 2003, Cingular began charging its customers a "Regulatory Cost Recovery Fee" that included a fee for local number portability. In June 2003, plaintiff Wing and her two coplaintiffs brought a class action alleging unfair business practices under the Unfair Competition Law (UCL) (Bus. & Prof. Code,

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