Filed 6/29/23 Zaghi v. The Kroger Co. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This 

opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

AYDA ZAGHI,

Plaintiff and Respondent,

v.

THE KROGER CO. et al.,

Defendants and Appellants.

B316460

Los Angeles County

Super. Ct. No.

20STCV00193

APPEAL from an order of the Superior Court of Los

Angeles County, Maren E. Nelson, Judge. Affirmed.

Davis Wright Tremaine, Jacob M. Harper, James H. Moon, 

and Peter K. Bae for Defendants and Appellants.

Yeroushalmi & Yeroushalmi and Reuben Yeroushalmi for

Plaintiff and Respondent.

_______________________________________
2

INTRODUCTION

Plaintiff Ayda Zaghi, individually and on behalf of all 

others similarly situated, sued Ralphs Grocery Company and The 

Kroger Co. (collectively, Ralphs) for falsely advertising that a loaf 

of bread she purchased from Ralphs through Instacart’s virtual 

storefront was certified kosher. Ralphs moved to compel 

arbitration of Zaghi’s claims, arguing it is a third-party 

beneficiary of an arbitration provision included in Instacart’s 

terms of service. The court denied Ralphs’s motion, concluding 

Instacart’s arbitration provision applies only to disputes between 

Instacart and its customers. In any event, the court concluded, 

Zaghi’s claims were not the type of disputes covered by 

Instacart’s arbitration provision.

On appeal, Ralphs contends the court erred in denying its 

motion to compel arbitration because (1) Instacart’s arbitration

provision requires an arbitrator, and not the court, to resolve 

issues of arbitrability, such as whether a nonsignatory to 

Instacart’s terms of service can enforce the arbitration provision; 

and (2) Ralphs is a third-party beneficiary of Instacart’s terms of 

service, including the arbitration provision. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Instacart is an online platform that provides an online 

storefront for customers to purchase groceries and other items 

from third-party retailers and arrange for those items to be 

delivered by independent contractors. Ralphs is a grocery store 

that operates as a third-party retailer on Instacart’s online 

storefront. 

In February 2016, Zaghi created an Instacart account. In 

doing so, she accepted Instacart’s Terms of Service, which 
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include, among other things, an arbitration provision. By 

accepting the Terms of Service, an Instacart customer agrees to 

arbitrate any “dispute with Instacart arising out of [the 

customer’s] use of [Instacart’s] services” if the customer and 

Instacart can’t first “work out any such dispute amicably.” The 

arbitration provision provides that any arbitration between 

Instacart and its customers “shall be administered by the 

[Judicial Arbitration and Mediation Service (JAMS),] under its 

Comprehensive Rules in effect at the time the arbitration 

demand is made.” If there is any conflict between the arbitration 

provision and JAMS’s rules and procedures, the arbitration 

provision “shall apply.” The arbitration provision also includes a 

class action waiver. A customer may opt out of mandatory 

arbitration by timely providing Instacart with notice of the 

customer’s intent to opt out of the arbitration provision. 

Instacart’s Terms of Service also include a choice of law 

provision stating that California law governs the application and 

interpretation of the agreement for customers residing in the 

United States. Additionally, the Terms of Service include release 

of claims, indemnification, and limitation of liability provisions. 

The release of claims and limitation of liability provisions state 

that they apply to, among other entities, Instacart’s retail 

partners. Instacart’s arbitration provision does not include 

similar language, however. 

In November 2018, Instacart added the following 

disclaimer to the first page of its Terms of Service: 

SECTION 11 (“DISPUTES & ARBITRATION”) 

OF THESE TERMS PROVIDE THAT ANY CLAIMS 

THAT YOU AND INSTACART HAVE AGAINST 

EACH OTHER, INCLUDING, WITHOUT 
4

LIMITATION, ANY CLAIMS THAT AROSE OR 

WERE ASSERTED BEFORE THE EFFECTIVE 

DATE OF THESE TERMS, WILL, WITH LIMITED 

EXCEPTIONS, BE SUBMITTED TO BINDING AND 

FINAL ARBITRATION. UNLESS YOU OPT OUT 

OF THE ARBITRATION AGREEMENT YOU WILL 

ONLY BE PERMITTED TO PURSUSE CLAIMS 

AND SEEK RELIEF AGAINST INSTACART ON AN 

INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR 

CLASS MEMBER IN ANY CLASS OR 

REPRESENTATIVE ACTION OR PROCEEDING. 

YOU ALSO WAIVE YOUR RIGHT TO SEEK 

RELIEF IN A COURT OF LAW AND TO HAVE A 

JURY TRIAL ON YOUR CLAIMS. PLEASE SEE 

SECTION 11 FOR MORE INFORMATION 

REGARDING THIS ARBITRATION AGREEMENT, 

THE POSSIBLE EFFECTS OF THIS 

ARBITRATION AGREEMENT, AND HOW TO OPT 

OUT OF THE ARBITRATION AGREEMENT.1

In 2019, Zaghi used her Instacart account to purchase a 

loaf of rye bread from Ralphs.2 Zaghi purchased the bread 

because it was advertised to be certified kosher. Specifically, 

Zaghi saw an “OK Kosher” certification sticker on the bread’s 

1 Between, November 2015 and June 2019, Instacart updated its 

Terms of Service several times without making any changes to the 

terms of its arbitration provision that are material to Zaghi’s lawsuit. 

2 According to Instacart’s senior litigation paralegal, a customer must 

agree to Instacart’s Terms of Service every time the customer places an 

order through the company’s platform.
5

label posted on Ralphs’s Instacart page. Zaghi also saw the 

certification sticker on the bread’s packaging and on Ralphs’s 

website. Zaghi later learned that the bread was not certified to be 

kosher by OK Kosher, the trademark licensee of the certification 

sticker included on the bread’s label.

In January 2020, Zaghi sued Ralphs, claiming the grocery 

store falsely advertised that the loaf of bread she purchased was 

certified kosher. According to Zaghi, she relies “on certifications 

by specific certifying organizations, provided on packaging via a 

statement or symbol, that food products are kosher when so

indicated,” and she would not have purchased the loaf of bread 

had Ralphs not advertised the product to be certified kosher. 

Zaghi’s operative third amended complaint includes class 

allegations and asserts three causes of action for false advertising 

under Business and Professions Code sections 17200 and17500 

and Civil Code section 1750.

Ralphs moved to compel arbitration of Zaghi’s claims. 

Ralphs claimed it was a third-party beneficiary of the arbitration 

provision included in Instacart’s Terms of Service. When Zaghi 

accepted those terms, Ralphs argued, she agreed to arbitrate any 

disputes with Ralphs arising out of her use of Instacart to 

purchase goods from the grocery store. To the extent Zaghi 

challenged Ralphs’s standing to enforce the arbitration provision, 

Ralphs argued the court was required to submit that question to 

arbitration because JAMS’s rules and procedures require issues 

of arbitrability to be decided by the arbitrator. 

The court denied Ralphs’s motion. The court found Ralphs 

was not a third-party beneficiary of Instacart’s arbitration 

provision. The court reasoned that, unlike other provisions of 

Instacart’s Terms of Service, the arbitration provision does not 
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state that it applies to any third parties, such as Instacart’s retail 

partners. Rather, the agreement states only that an Instacart 

customer is required to arbitrate disputes between herself and 

Instacart over her use of Instacart’s services. Since the parties 

knew how to draft provisions of the Terms of Service for the 

benefit of third parties, such as third-party retailers like Ralphs, 

the absence of such language in the arbitration provision shows 

the parties did not intend for that agreement to benefit third 

parties. 

The court also rejected Ralphs’s arbitrability argument.

Under the language of Instacart’s arbitration provision, Zaghi 

agreed only to arbitrate disputes, including disputes over issues 

of arbitrability, between herself and Instacart. Since Instacart’s 

arbitration provision does not clearly show Zaghi agreed to 

arbitrate the issue of arbitrability with nonsignatories, the “ 

‘court had the authority to decide whether the instant dispute is 

arbitrable.’ ” In any event, the court concluded, Zaghi’s claims 

against Ralphs did not fall within the scope of the arbitration 

provision because they do not arise out of any conduct by 

Instacart. Instead, the court reasoned, Zaghi’s claims are 

incidental to her use of Instacart and arise directly out of 

Ralphs’s alleged false advertising concerning one of its products, 

conduct that Ralphs engaged in not just on the Instacart page, 

but also on its product packaging and on its website.

Ralphs appeals.

DISCUSSION

Ralphs argues the court erred in denying its motion to 

compel arbitration because an arbitrator, and not the court, 

should have decided the issue of arbitrability—i.e., whether a 

nonsignatory like Ralphs can enforce the arbitration provision in 
7

Instacart’s Terms of Service. In any event, Ralphs argues, it is 

entitled to enforce the arbitration provision as a third-party 

beneficiary of those Terms of Service. As we explain, both of 

Ralphs’s arguments lack merit. 

1. Applicable Law and Standard of Review

The Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) and 

the California Arbitration Act (CAA) (Code Civ. Proc., § 1280 et 

seq.) favor enforcement of valid arbitration agreements.3

(Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 83; 

Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 

Cal.4th 19, 31.) This policy does not extend, however, to those 

who are not parties to an arbitration agreement. (Howsam, at p. 

83; Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990.) Nor can 

a party “be compelled to arbitrate a dispute that [she] has not 

agreed to resolve by arbitration.” (Benasra, at p. 990.)

A court must order a dispute to arbitration “when the party 

seeking to compel arbitration proves the existence of a valid 

arbitration agreement covering the dispute.” (Laswell v. AG Seal

Beach, LLC (2010) 189 Cal.App.4th 1399, 1404–1405.) Where, as 

here, the underlying facts are undisputed, we independently 

review an order denying a motion to compel arbitration. (Banc of 

California, National Assn. v. Superior Court (2021) 69 

Cal.App.5th 357, 367.) 

3 As Ralphs acknowledges, we need not determine whether the CAA or 

the FAA governs Instacart’s arbitration provision because the 

statutory schemes are “interpreted the same under controlling 

precedent.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 

241.)
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2. The court had the authority to decide whether Ralphs 

could enforce the arbitration provision.

As a threshold matter, Ralphs contends the court lacked 

the authority to decide whether the grocery store could enforce 

Instacart’s arbitration provision because that provision

incorporates JAMS’s rules and procedures, which include a 

delegation clause granting exclusive authority to decide 

arbitrability issues to an arbitrator.4 Since Zaghi accepted 

Instacart’s Terms of Service and did not opt out of the arbitration 

provision, Ralphs argues she agreed to submit any issues of 

arbitrability to the arbitrator—including whether a nonsignatory 

to Instacart’s Terms of Service can enforce Instacart’s arbitration 

provision. We disagree.

Parties to an arbitration agreement may agree to delegate 

the authority to decide issues of arbitrability to an arbitrator. 

(Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413, 1439–

1440.) They may do so by incorporating into the arbitration 

agreement JAMS’s rules and procedures for arbitration. (Id. at p. 

1442.) Courts should not assume that parties to a lawsuit 

involving an arbitration provision agreed to arbitrate 

arbitrability, however, unless there is clear and unmistakable 

evidence that they did so. (Id. at p. 1440, citing First Options of 

Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 945 (First Options).) 

4 Rule 11(b) of JAMS’s Comprehensive Arbitration Rules & Procedures 

provides: “Jurisdictional and arbitrability disputes, including disputes 

over the formation, existence, validity, interpretation or scope of the 

agreement under which Arbitration is sought, and who are proper 

Parties to the Arbitration, shall be submitted to and ruled on by the 

Arbitrator. The Arbitrator has the authority to determine jurisdiction 

and arbitrability issues as a preliminary matter.”
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As the United States Supreme Court has explained, issues 

of arbitrability generally are reserved for judicial determination. 

(First Options, supra, 514 U.S. at p. 945.) Thus, courts should not 

interpret silent or ambiguous contracts in favor of arbitrating 

issues of arbitrability. (Ibid.) “[G]iven the principle that a party 

can be forced to arbitrate only those issues it specifically has 

agreed to submit to arbitration, one can understand why courts 

might hesitate to interpret silence or ambiguity on the ‘who 

should decide arbitrability’ point as giving arbitrators that power, 

for doing so might too often force unwilling parties to arbitrate a 

matter they reasonably would have thought a judge, not an 

arbitrator, would decide.” (Ibid.) 

The FAA’s presumption in favor of courts resolving 

arbitrability issues applies to questions concerning whether a 

nonsignatory can enforce an arbitration agreement against a 

signatory. (Kramer v. Toyota (9th Cir. 2013) 705 F.3d 1122, 1126–

1128 (Kramer) [it is “ ‘well settled that where the dispute at issue 

concerns contract formation, the dispute is generally for courts to 

decide’ ”].) California courts have interpreted the CAA in a 

similar manner. (See Matthau v. Superior Court (2007) 151 

Cal.App.4th 593, 598 [“the policy favoring arbitration does not 

eliminate the need for an agreement to arbitrate and does not 

extend to persons who are not parties to an agreement to 

arbitrate”].) Thus, before a clause delegating authority to resolve 

arbitrability issues to an arbitrator may be enforced against a 

signatory, a court must first determine whether the signatory 

agreed to arbitrate arbitrability with the person or entity seeking 

to enforce the arbitration agreement. (Benaroya v. Willis (2018) 

23 Cal.App.5th 462, 469 (Benaroya) [“ ‘The question of whether a 
10

nonsignatory is a party to an arbitration agreement is one for the 

trial court in the first instance.’ ”].)

Instacart’s arbitration provision states that Zaghi and 

Instacart agree to resolve through binding arbitration any 

disputes concerning Zaghi’s use of Instacart’s online shopping 

platform or the interpretation of the company’s Terms of Service. 

The first page of the Terms of Service that were in effect when 

Zaghi made the underlying purchase similarly states that “ANY 

CLAIMS THAT YOU [i.e., Zaghi] AND INSTACART HAVE 

AGAINST EACH OTHER ... WILL, WITH LIMITED 

EXCEPTIONS, BE SUBMITTED TO BINDING AND FINAL 

ARBITRATION.” Neither the arbitration provision nor any other 

section of the Terms of Service states that Zaghi agreed to 

arbitrate disputes with any person or entity other than Instacart. 

Thus, under a literal reading of Instacart’s Terms of Service, 

Zaghi agreed only to arbitrate disputes between herself and 

Instacart, including disputes over the interpretation of the 

arbitration provision. (Martinez v. BaronHR, Inc. (2020) 51 

Cal.App.5th 962, 967 (Martinez) [contract language controls if it 

is clear and explicit].)

Kramer, supra, 705 F.3d 1122, which involves facts similar

to those at issue in this case, is instructive. (See Brakke v. 

Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 770 

[although decisions of federal courts on similar issues are not 

binding, they may be persuasive].) There, a group of plaintiffs 

purchased cars from various dealerships. (Kramer, at p. 1124.)

The plaintiffs sued the cars’ manufacturer based on product 

defects and false advertising. (Id. at p.1125.) The manufacturer, 

who was not a party to the purchase agreements between the 

plaintiffs and the dealerships, moved to compel the plaintiffs to 
11

arbitrate their claims based on arbitration provisions included in 

those purchase agreements. (Id. at pp. 1124–1125.) The 

arbitration provisions, which were all similarly worded, stated 

that they applied to disputes between the car buyers—i.e., the 

plaintiffs—and the dealerships. (Id. at p. 1124.) The arbitration 

provisions also included delegation clauses, stating that the 

provisions applied “to any claim or dispute about the 

interpretation and scope” of the provisions, as well as to “any 

claim or dispute about whether a claim or dispute should be 

determined by arbitration.” (Id. at p.1125.)

The district court denied the manufacturer’s motion to 

compel arbitration, and the Ninth Circuit affirmed the district 

court’s order. (Kramer, supra, 705 F.3d at pp. 1125–1134.) The 

Ninth Circuit rejected the manufacturer’s argument that the 

arbitration provisions’ delegation clauses, which “expressly 

provide[d] that the arbitrator shall decide issues of 

interpretation, scope, and applicability of the arbitration 

provision,” deprived the district court of the authority to decide 

whether the nonsignatory manufacturer could compel the 

plaintiffs to arbitration. (Id. at pp. 1126–1128.) The court 

explained that the arbitration provisions did “not contain clear 

and unmistakable evidence” that the plaintiffs and the 

manufacturer agreed to arbitrate arbitrability. (Id. at p. 1127.) 

Although the plaintiffs may have agreed to arbitrate arbitrability 

with the dealerships, the terms of the arbitration provisions “are

expressly limited to Plaintiffs and the Dealerships.” (Ibid.) For 

instance, the provisions stated that “ ‘[e]ither you [i.e., a plaintiff]

or we [i.e., a dealership] may choose to have any dispute between 

you and us decided by arbitration.’ ” (Ibid.) According to the 

court, the language of the arbitration provisions showed the 
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plaintiffs intended “to arbitrate arbitrability with the 

[d]ealerships and no one else.” (Ibid.)

Like the agreements at issue in Kramer, Instacart’s 

arbitration provision is expressly limited to disputes between 

Zaghi and Instacart. Instacart’s arbitration provision does not 

state that it is enforceable by third parties or that it applies to 

disputes involving third parties. Nor do any other sections of 

Instacart’s Terms of Service indicate that Zaghi agreed to 

arbitrate any disputes related to her use of Instacart’s online 

shopping platform or the interpretation of the Terms of Service

with third parties. Instacart’s arbitration provision, therefore, 

does not contain “clear and unmistakable” language showing 

Zaghi agreed to arbitrate disputes with Ralphs over the 

arbitrability of her claims against the grocery store. (Kramer, 

supra, 705 F.3d at p. 1127.) Since the parties to this dispute—i.e., 

Zaghi and Ralphs—did not agree to arbitrate arbitrability, the 

delegation clause in Instacart’s arbitration provision does not 

control. (Id. at p. 1128; see also Benaroya, supra, 23 Cal.App.5th 

at p. 469 [“ ‘The question of whether a nonsignatory is a party to 

an arbitration agreement is one for the trial court in the first 

instance.’ ”].)

Ralphs argues Kramer is distinguishable because “the 

Ninth Circuit conditioned its holding on ‘the absence of clear and 

unmistakable evidence that [the plaintiffs] agreed to arbitrate 

arbitrability.’ ” Because Instacart’s arbitration provision 

expressly incorporated JAMS’s rules and procedures, which were 

not incorporated into the arbitration provisions in Kramer,

Ralphs insists that Zaghi “clearly and unmistakably “inten[ded] 

to have the arbitrator decide gateway issues of arbitrability.” 

This is a distinction without a difference. As we just discussed, 
13

the arbitration provisions in Kramer included their own 

delegation clauses, delegating the authority to decide issues of 

arbitrability, including issues over the applicability of the 

provisions, to an arbitrator. (Kramer, supra, 705 F.3d at p. 1124.)

But, just as in Kramer, the key issue here is not whether the 

underlying arbitration provision includes a clause delegating to 

an arbitrator the authority to decide issues of arbitrability, but 

rather whether the parties before the court agreed to be bound by 

an arbitration provision that includes a delegation clause. That is 

an issue for the court to decide. (See Henry Schein, Inc. v. Archer 

& White Sales, Inc. (2019) 586 U.S. ___ [139 S.Ct. 524, 530, 202 

L.Ed.2d 480] [the issue of arbitrability is for the court to decide 

unless the parties’ agreement clearly and unmistakably provides 

otherwise].)

In sum, because there is no clear and unmistakable 

evidence that Zaghi agreed to arbitrate any disputes with Ralphs

when she accepted Instacart’s Terms of Service, the delegation 

clause included in Instacart’s arbitration provision does not apply 

here. The court, therefore, properly decided the question of

whether Ralphs could enforce that arbitration provision. 

3. Ralphs is not a third-party beneficiary of Instacart’s 

arbitration provision.

Ralphs next contends the court erred in finding the grocery 

store is not a third-party beneficiary of Instacart’s arbitration 

provision. Again, we disagree. 

A third party may enforce a contract made expressly for its 

benefit. (Civ. Code, § 1559.) To enforce a contract, the third party 

must establish the following elements: (1) the third party would 

in fact benefit from the contract; (2) a motivating purpose of the 

contracting parties was to provide a benefit to the third party; 
14

and (3) permitting the third party to enforce the contract against 

a contracting party is consistent with the objectives of the 

contract and the reasonable expectations of the contracting 

parties. (Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 830

(Goonewardene).) The third party “ ‘bears the burden of proving 

that the promise he seeks to enforce was made to him personally 

or to a class of which he is member.’ ” (Spinks v. Equity 

Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 

1024.)

A third-party beneficiary may enforce only those terms of 

the contract that were made for its benefit. (Clark v. California 

Ins. Guarantee Assn. (2011) 200 Cal.App.4th 391, 398.) Thus, to 

compel arbitration of a dispute, the third party must show that 

the arbitration provision included in the contract, and not just

some other part of that contract, was made expressly for the third 

party’s benefit. (Fuentes v. TMCSF, Inc. (2018) 26 Cal.App.5th 

541, 552.)

As we explained above, neither Instacart’s arbitration 

provision nor any other portion of the company’s Terms of Service 

requires an Instacart customer to arbitrate with third parties 

disputes that might relate to the customer’s use of Instacart’s 

online shopping platform. Likewise, neither the arbitration 

provision nor any other portion of Instacart’s Terms of Service 

suggests that a third party may invoke the arbitration provision 

against an Instacart customer. Since Instacart and its customers 

are the only parties mentioned in the arbitration provision and 

the portions of Instacart’s Terms of Service addressing 

arbitration, Ralphs hasn’t satisfied the first element of the thirdparty beneficiary test—i.e., demonstrating that it would directly

benefit from Instacart’s arbitration provision. (Goonewardene, 
15

supra, 6 Cal.5th at p. 830; see also Ford Motor Warranty Cases

(2023) 89 Cal.App.5th 1324, 1338–1340 [where arbitration 

provision is expressly limited to enumerated parties, a 

nonsignatory that is not one of those enumerated parties cannot 

directly benefit from that provision]; see also Ngo v. BMW of 

North America, LLC (9th Cir. 2022) 23 F.4th 942, 947 [“Language 

limiting the right to compel arbitration to a specific [customer] 

and a specific [company] ... means that extraneous third parties 

may not compel arbitration.”].)

Further, the language in the arbitration provision limiting 

arbitration to disputes between Instacart and its customers 

suggests Instacart and Zaghi did not intend or expect a third 

party to benefit from Instacart’s arbitration provision. (Martinez, 

supra, 51 Cal.App.5th at p. 967 [the parties’ mutual intent is to 

be ascertained solely from the contract language if that language 

is clear and explicit].) Indeed, the inclusion of other provisions in 

Instacart’s Terms of Service that expressly benefit third-party 

retailers like Ralphs, such as the release of claims and limitation 

of liability clauses, shows that Instacart and Zaghi knew how to 

create promises that expressly benefit third parties. The omission 

of such language in Instacart’s arbitration provision and other 

portions of the company’s Terms of Service discussing arbitration 

shows Instacart and Zaghi did not intend or expect the 

arbitration provision to apply to third parties. (See Ford Motor 

Warranty Cases, supra, 89 Cal.App.5th at p. 1339 [the signatories 

easily could have articulated an intent to benefit the 

nonsignatory by naming the nonsignatory as a person entitled to 

compel arbitration]; see also White v. Western Title Ins. Co. (1985) 

40 Cal.3d 870, 881–882, fn. 4 [contracting parties’ mention of one 

thing is the exclusion of another].) 
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For the foregoing reasons, Ralphs is not a third-party 

beneficiary of the arbitration provision in Instacart’s Terms of 

Service. The court, therefore, properly denied Ralphs’s motion to 

compel arbitration.5

DISPOSITION

The order denying Ralphs’s motion to compel arbitration is

affirmed. Zaghi shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

HEIDEL, J.*

5 In light of this conclusion, we need not address Ralphs’s claim that 

the court erred in denying arbitration on the alternative ground that 

Zaghi’s claims against the grocery store do not fall within the scope of 

Instacart’s arbitration provision.

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.