Judge: Theresa M. Traber, Case: 24STCV01349, Date: 2025-02-05 Tentative Ruling

Case Number: 24STCV01349    Hearing Date: February 5, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 5, 2025                   TRIAL DATE: NOT SET

CASE:                         Airsha Byars v. Bio Clarity, LLC

CASE NO.:                 24STCV01349           

MOTION TO COMPEL ARBITRATION

MOVING PARTY:               Defendant Bio Clarity, LLC

RESPONDING PARTY(S): Plaintiff Arisha Byars

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for violation of the California Invasion of Privacy Act that was filed on January 18, 2024. Plaintiff alleges that Defendant violated the act by employing a third party to harvest data collected from the chat feature on Defendant’s website.

Defendant moves to compel arbitration.

TENTATIVE RULING:

Defendant’s Motion to Compel Arbitration is DENIED.

DISCUSSION:

Defendant moves to compel arbitration based on a user agreement containing an arbitration provision to which it contends Plaintiff assented.

Requests for Judicial Notice

            Plaintiff requests that the Court take judicial notice of a series of court orders in unrelated actions denying motions to compel arbitration. These materials are entirely irrelevant to the Court’s ruling. Plaintiff’s Requests are DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].) 

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Late Reply Brief

            Defendant’s reply brief was served and filed on January 31, 2025. (See Reply POS.) Code of Civil Procedure section 1005(b) requires that any reply papers be served no later than five court days before the scheduled hearing date. (Code Civ. Proc. § 1005(b).) Defendant’s reply was therefore due on Wednesday, January 29, 2025. As Defendant offers no explanation for its tardy response, the Court would be within its authority to disregard Defendant’s reply in its entirety. Nevertheless, in the interest of fully resolving the issues presented in this motion, the Court will address Defendant’s responsive arguments.

Existence of an Arbitration Agreement

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 (overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094).) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

Defendant contends that Plaintiff consented to arbitration by agreeing to Defendant’s User Agreement by making use of Defendant’s website.

An agreement to arbitration must be mutual as “[t]here is indeed a strong policy in favor of enforcing agreements to arbitrate, but there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate…”  (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 481.)  “This requirement applies with equal force to arbitration provisions contained in contracts purportedly formed over the Internet.”  (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 862.)  “Federal law is wholly congruent with these principles.”  (Fleming v. Oliphant Financial, LLC (2023) 88 Cal.App.5th 13, 19.) As the Court of Appeal stated in Sellers v. JustAnswer LLC:

Most courts now have identified at least four types of internet contract formation, most easily defined by the way in which the user purportedly gives their assent to be bound by the associated terms: browsewraps, clickwraps, scrollwraps, and sign-in wraps.  A “browsewrap” agreement is one in which an internet user accepts a website's terms of use merely by browsing the site. A “clickwrap” agreement is one in which an internet user accepts a website's terms of use by clicking an “I agree” or “I accept” button, with a link to the agreement readily available. A “scrollwrap” agreement is like a “clickwrap,” but the user is presented with the entire agreement and must physically scroll to the bottom of it to find the “I agree” or “I accept” button.... “Sign-in-wrap” agreements are those in which a user signs up to use an internet product or service, and the sign-up screen states that acceptance of a separate agreement is required before the user can access the service. While a link to the separate agreement is provided, users are not required to indicate that they have read the agreement's terms before signing up.’ [Citations.]” 

(Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 463-64.) Scrollwrap and clickwrap agreements are generally found to be enforceable, and browsewrap agreements generally are not. (Id. at 466.) “[T]he Long court and federal courts have reached consistent conclusions when evaluating the enforceability of agreements at either end of the spectrum, generally finding scrollwrap and clickwrap agreements to be enforceable and browsewrap agreements to be unenforceable.”  (Sellers, supra, 73 Cal.App.5th at 466.) “[T]he onus must be on website owners to put users on notice of the terms to which they wish to bind consumers.” (Long, supra, 245 Cal.App.4th at 867.)

Defendant asserts that Plaintiff assented to its website’s “Terms of Service,” which contains an arbitration provision, by “accessing and utilizing” Defendant’s website. (Declaration of Sol Silberstein ISO Mot. ¶¶ 6-8.) Defendant provides no evidence whatsoever regarding the presentation of this agreement as a means of demonstrating that Plaintiff had notice of its existence. Bare conclusions by an unidentified “officer” are not evidence. Moreover, Plaintiff’s counsel provides, in opposition, an image of Defendant’s website which demonstrates that the Terms of Service are located in a small-font hyperlink, without emphasis, ensconced in a footer among numerous other hyperlinks. (Declaration of Scott J. Ferrell ISO Opp. ¶¶ 2-5; Exh. 1.) Further still, Plaintiff herself categorically denies seeing or accessing the Terms of Use. (Declaration of Arisha Byars ISO Opp. ¶¶ 2-3.) In reply, Defendant argues that Plaintiff’s evidence is not relevant since she alleged that she accessed the website via a smartphone, not a desktop computer. (See Complaint ¶ 23.) Defendant also attempts to rectify its deficient evidentiary showing by presenting a screenshot of the checkout page for the mobile version of its website, which presents the Terms of Service in gray underlined font, sized similarly to the bulk of the text on the page, and located beneath the blue “Pay Now” button. (Supplemental Declaration of Alana Yakovlev ISO Reply Exh. A.)

Defendant’s additional evidence is insufficient in multiple respects. First, although Plaintiff alleges that she accessed Defendant’s website on a smartphone, the Complaint does not specify which version of the website she accessed with that device, and Defendant offers no evidence on this point. Second, although the Complaint alleges that Plaintiff accessed the website, it does not assert that Plaintiff made or attempted any purchases on the website which would have led her to the checkout page presented by Defendant. (See Complaint ¶ 23.) Again, Defendant offers no evidence on this point and has therefore failed to establish the relevance of the checkout page to this action. Third, even if the checkout page is relevant, nothing on that page references the existence of an arbitration agreement or even the manner by which a user assents to the Terms of Service. (Yakovlev Supp. Decl. Exh. A.) There is not, for example, an affirmative statement in the vicinity of the payment button advising the user that by using the website or by executing the transaction they assent to the Terms of Service. What is more, although the Terms of Service link is in the same size as the majority of the text on the page, it is placed beneath the transaction information and the payment button, rather than above, where it might naturally be encountered in the course of viewing the page. The hyperlink is also presented in gray font on a white background, whereas the majority of the text is black on a white background and the “Pay now” text is white-on-blue. (Id.) Even if the mobile checkout page were demonstrably relevant, the Court could not conclude, on this record, that the Terms of Service were presented in such a manner that would have put Plaintiff on actual or constructive notice of the putative arbitration agreement. Further still, both Plaintiff’s and Defendant’s evidence indicate that the website requires no affirmative manifestation of consent through clicking an icon or scrolling through text for the Terms of Service to become operative. On this record, therefore, the Court concludes that the Terms of Service constitute a browsewrap agreement which, under general notice principles and express authority disapproving of browsewrap agreements, is not an enforceable arbitration agreement.

CONCLUSION:

Accordingly, Defendant’s Motion to Compel Arbitration is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  February 5, 2025                                ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.