Judge Theresa M. Traber, Case Number: 24STCV04311, Date: 2024-10-02 Tentative Ruling

This is a wrongful death and products liability action brought by the family of the decedent, Jerry Moss. Plaintiffs allege that Defendants sold a series of dietary supplements which contained hidden active ingredients that caused the decedent’s death.

Defendant eBay, Inc. moves to compel arbitration based on a user agreement containing an arbitration provision to which it contends Plaintiff Kelly Moss[1] assented. \

Plaintiffs object to portions of the Declaration of Nic Conlin in support of the Motion. The Court rules on these objections as follows:

Objection No. 2: SUSTAINED as a conclusion of law to the extent the statement is offered to prove a valid agreement. (E.g. Dais v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 369.)

Objection No. 3: OVERRULED. This testimony is laying the foundation for the admission of documents as business records.

Objection No. 5: SUSTAINED as a conclusion of law to the extent the statement is offered to prove a valid agreement (E.g. Dais v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 369), but OVERRULED to demonstrate the process of making a purchase through eBay’s marketplace.

Objection No. 7: SUSTAINED as a conclusion of law to the extent the statement is offered to prove a valid agreement. (E.g. Dais v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 369.)

Defendant raises evidentiary objections to the Declaration of Kelly Moss in opposition to the motion. As the Court does not rely on that declaration in reaching its decision, the Court declines to rule on those objections.

Plaintiffs request that the Court take judicial notice of (1) a Declaration filed in support of a Motion to Compel Arbitration in the action Jason McGuiness, et al., v. eBay Inc., et al., in the Superior Court of the State of California, County of San Diego – Central Division, Case No. 37-2018-00031242-CU-FR-CTL; (2) the opinion in Daniel v. eBay Inc. (D.D.C. 2018) 319 F.Supp.3d 505; and (3) McCoy v. Blue Cross & Blue Shield of Utah (Utah 2001) 20 P.3d 901. These materials are entirely irrelevant to the Court’s ruling. Plaintiffs’ 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.”].)

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 Kelly consented to arbitration by agreeing to Defendant’s User Agreement when she purchased the products that are alleged to be the cause of the decedent’s death.

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.)

According to Defendant, Kelly created an eBay user account on March 21, 2002, and, in doing so, agreed to eBay’s then-operative User Agreement, which contained an arbitration provision. (Declaration of Nic Conlin ISO Mot. ¶ 9; Exh. 4.) Defendant provides no evidence of Kelly’s assent to that agreement beyond the assertion that an agreement is reflected in eBay’s user account records. (Id.) In August 2012, Defendant updated its User Agreement and sent a message to all users’ My eBay Message Centers advising them of the changes to the Agreement. (Id. ¶¶ 10-11; Exh. 5.) Defendant contends that users receive notices sent to their registered email alerting them that “a message . . . was posted to the My eBay Message Center,” but does not state that the email notification reflected or referenced changes to the Agreement. (Id. ¶ 10.) The revised Agreement required users to mail a written Opt-Out notice on or before November 9, 2012 if they wished to reject the modified Agreement to Arbitrate included as part of the User Agreement. (Id. ¶¶ 12-14; Exh. 6.) Defendant also states that users must agree to the User Agreement as part of executing a transaction on the website, as the button to complete a purchase is accompanied by text which states “By placing your order, you agree to eBay’s User Agreement and Privacy Notice.” (Conlin Decl. ¶ 7.) The “User Agreement” and “Privacy Notice” are hyperlinked to the documents bearing those titles. (Id.) Although Defendant provides a screenshot of the button and notice, Defendant does not provide the context in which it appears. (Id.)

Defendant does not clearly indicate the form of the User Agreement with respect to the framework described in Sellers. That said, the confirmation page suggests that the agreement is, at best, a sign-in-wrap, rather than a clickwrap or scrollwrap. Under Sellers, the Court must therefore look to the context in which notice of the Agreement was presented and determine whether a reasonably prudent offeree would be on inquiry notice of the terms at issue. (Sellers, supra, 73 Cal.App.5th at 461.) The Court is not satisfied by Defendant’s production. Defendant offers a bare assertion that Kelly agreed to the 2002 Agreement, a second-hand description of an email “notification” regarding revisions to that agreement posted on a separate website message board without any detail in the email as to the contents of the revisions, and a highly-cropped and contextless screenshot of a webpage with a link to a User Agreement. To make matters worse, this webpage is described as the current version of the checkout page, not the 2022 page that Kelly actually confronted when she bought the products through eBay. (Conlin Decl., ¶ 7.) This meager showing is not sufficient to demonstrate even on a prima facie basis that Kelly assented to the arbitration agreement or was on constructive—let alone actual—notice of its existence.

Defendant has not demonstrated that Plaintiff Kelly Moss was on notice of any agreement to arbitrate, and therefore has not demonstrated her consent to such an agreement. Although not necessary to its conclusion, the Court also notes that Plaintiff denies any knowledge of the 2012 email notification of a revised arbitration agreement, the website message about a revised arbitration clause and need to opt out, or the revised 2012 User Agreement. (Declaration of Kelly Moss, ¶¶ 4-5.) Because there is no evidence that Plaintiff received notice of the relevant arbitration agreement or that she agreed to be bound by it, Defendant is not entitled to an order compelling arbitration.

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.

[1] All three Plaintiffs in this action bear the same surname. For clarity, the Court refers to each Plaintiff by first name. The Court means no disrespect in doing so.