Beland v. Expedia CA3

Filed 7/20/21 Beland v. Expedia CA3
NOT TO BE PUBLISHED
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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----

BRIAN D. BELAND et al.,

Plaintiffs and Appellants, C086061

v. (Super. Ct. No. PC20160434)

EXPEDIA, INC.,

Defendant and Respondent.

Denae Beland used the website for Expedia, Inc. (Expedia) to book an airfare and
hotel package to Cabo San Lucas, Mexico for her and her family. She and her husband
Brian1 subsequently sued Expedia for, among other things, allegedly failing to warn them
that a hurricane was forecasted to hit Cabo San Lucas hours after their flight to Mexico
landed, causing them to suffer various injuries as a result of a city-wide, emergency
shutdown. The trial court granted Expedia’s motion to stay the lawsuit pending an action

1 For clarity, we will refer to Brian and Denae by their first names, and collectively as
the Belands.

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in the state of Washington pursuant to a forum selection clause in the terms of use for
Expedia’s website.
The Belands now contend the trial court erred in (1) overruling their evidentiary
objections to a declaration Expedia submitted in support of its motion; (2) declining to
admit declarations and a printout proffered by the Belands; (3) concluding that Expedia’s
website presented a “clickwrap” rather than a “browsewrap” agreement (concepts we
explain in part III of this opinion); (4) concluding that Expedia’s terms of use contained a
forum selection clause rather than a venue selection clause; (5) determining that the terms
of use were not unconscionable; (6) finding that the unilateral modification provision in
the terms of use did not render the parties’ contract illusory; (7) dismissing sua sponte
their cause of action under the Consumers Legal Remedies Act (CLRA) (Civ. Code,
§ 1750 et seq.); and (8) striking their proposed settled statement.
We conclude (1) the trial court did not abuse its discretion in overruling the
Belands’ evidentiary objections to the declaration; (2) the trial court did not abuse its
discretion in declining to admit the declarations and printout proffered by the Belands;
(3) Expedia’s final booking webpage was more like a browsewrap agreement and under
the specific circumstances of this case the webpage gave Denae sufficient inquiry notice
for us to conclude that she assented to the Expedia terms of use; (4) the terms of use
contained a forum selection clause rather than a venue selection clause; (5) the trial court
did not err in rejecting the Belands’ unconscionability claim; (6) the terms of use were
not illusory; (7) the trial court did not dismiss the CLRA cause of action; and (8) the
Belands fail to demonstrate that the trial court erred in striking their proposed settled
statement.
We will affirm the order of the trial court.
BACKGROUND
Expedia, a Washington corporation, maintained a website that allowed consumers
to search for travel-related goods and services and make reservations with travel

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suppliers. Denae used Expedia’s website on her computer in El Dorado County,
California on September 2, 2014, to book Virgin America Airline tickets from San
Francisco, California to Cabo San Lucas, Mexico and accommodations at a Hyatt resort
in Cabo San Lucas for her and her family. The Beland family arrived in Cabo San Lucas
to find the city under a mandatory evacuation order because of a category 4 hurricane.
They were forced to stay at a shelter for three days under terrible conditions until they
were evacuated to Guadalajara, Mexico, where they had to pay for an overnight hotel stay
and a flight home.
As residents of El Dorado County, the Belands sued Expedia in El Dorado County
Superior Court for damages relating to their trip. Denae, a California licensed attorney,
represented the Belands in the trial court and continues to do so on appeal. The Belands’
second amended complaint alleged causes of action for negligence, failure to warn,
breach of implied warranty of habitability, breach of contract, intentional and negligent
infliction of emotional distress, and violation of the CLRA.
Pursuant to Code of Civil Procedure section 418.102 [motion to stay or dismiss
due to inconvenient forum], Expedia moved to stay or dismiss the lawsuit and to require
the Belands to file their action in Washington based on the forum selection clause in the
terms of use on Expedia’s website when Denae booked the Belands’ trip. Expedia
submitted the declaration of Pinglang Wang, its Director of Global Product Management,
in support of the motion. Wang attached a screenshot of the relevant final booking
webpage as an exhibit to his declaration. The webpage had the words “Review and book
your trip” at the top, in bold and in a font larger than the text below it. A copy of the
“Review and book your trip” webpage is appended to this opinion. Below a bullet point
list, in the same-sized font as the words on the list, the page stated: “By selecting to

2 Undesignated statutory references are to the Code of Civil Procedure.

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complete this booking I acknowledge that I have read and accept the above Rules &
Restrictions, Terms of Use and Privacy Policy .” The Belands agree the symbol
signified a hyperlink was included. The words “Terms of Use” and “Privacy Policy” and
the symbol were in blue font.
Below the “By selecting to complete this booking” sentence, there was a green
banner in which the following sentence appeared in bold and slightly larger font: “Book
this flight and qualify for up to 54% off hotels for your trip.” The following words
appeared below the green banner: “ Free cancellation within 24 hours!” The words
“24 hours” were in blue font. The “Free cancellation” sentence was in the same-sized
font as the bullet point list and the “By selecting to complete this booking” sentence.
Under the “Free cancellation” sentence, there was a bright orange box with the
words “COMPLETE BOOKING” in larger-sized font. The following sentence appeared
below the orange box: “ We use secure transmission and encrypted storage to protect
your personal information.”
Wang attested that since at least September 2014 and continuing to December
2016, a consumer could not complete a booking using Expedia’s website without
encountering the “Review and book your trip” webpage. He also attached a copy of the
terms of use for Expedia’s website in effect on September 2, 2014, as an exhibit. The
terms of use contained the forum selection clause.
After hearing oral argument, the trial court overruled the Belands’ evidentiary
objections to Wang’s declaration. It concluded that this case involved an enforceable
clickwrap agreement because a user had to take an affirmative step to agree to the terms
of use by clicking the “COMPLETE BOOKING” button. It found that the terms of use
contained a forum selection clause, not a venue selection clause, and the terms of use
were not illusory.
The trial court determined the terms of use were procedurally unconscionable
because they were offered on a take-it-or-leave-it basis by a party with superior

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bargaining strength and the forum selection clause was not readily apparent in the terms
of use. But the trial court concluded the terms of use were not substantively
unconscionable because although the forum selection clause would cause inconvenience
and additional expense for the Belands, it did not shock the conscience. The trial court
granted Expedia’s motion to stay the lawsuit pending an action in the state of Washington
pursuant to the forum selection clause.
DISCUSSION
I
The Belands contend the trial court erred in overruling their evidentiary objections
to the Wang declaration.
A
The Belands objected to the Wang declaration on the following grounds: that
Expedia did not offer a percipient witness to the terms of use; Expedia did not use
recognized methods to authenticate the terms of use; the Wang declaration did not lay a
foundation for the writings; and there was no evidence that the exhibits to the Wang
declaration were the actual webpage and terms of use in effect on September 2, 2014.
The trial court overruled the evidentiary objections.
Evidence in support of, or in opposition to, a section 418.10 motion must be
admissible. (See generally Paneno v. Centres for Academic Programmes Abroad Ltd.
(2004) 118 Cal.App.4th 1447, 1454.) “[T]he testimony of a witness concerning a
particular matter is inadmissible unless he [or she] has personal knowledge of the
matter.” (Evid. Code, § 702, subd. (a).) “A witness’ personal knowledge of a matter may
be shown by any otherwise admissible evidence, including his [or her] own testimony.”
(Evid. Code, § 702, subd. (b).) In addition, a writing must be authenticated before it or
secondary evidence of its contents may be admitted into evidence. (Evid. Code, § 1401.)
A writing is authenticated when sufficient evidence has been produced to sustain a
finding that the document is what its proponent purports it to be. (Evid. Code, § 1400).

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 The Belands argue de novo review applies here. Although we would
independently review whether a trial court properly interpreted a statute (Zhou v.
Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476; People v. Walker (2006)
139 Cal.App.4th 782, 794-795), the Belands do not explain how the trial court incorrectly
construed the Evidence Code. Here, we review the trial court’s evidentiary rulings for
abuse of discretion. (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 684;
31 Cal.Jur.3d (2021) Evidence, §§ 462, 469.)
B
Wang attested that he had worked for Expedia for about 12 years, including in
2014, when the Belands alleged Denae used the Expedia website to book their trip.
Wang explained that as Expedia’s Director of Global Product Management, he was
responsible for managing Expedia’s checkout process and implementing its payment
methods, and he had personal knowledge of the matters set forth in his declaration. He
averred that the screenshot of the “Review and book your trip” webpage and the terms of
use attached to his declaration were true and correct copies of the webpage and terms of
use in effect on September 2, 2014.
Based on its content, the “Review and book your trip” webpage was part of the
checkout process, which Wang said he managed for Expedia. It was reasonable for the
trial court to conclude, based on Wang’s description of his responsibilities at Expedia,
that Wang had personal knowledge of the checkout process on Expedia’s website and
could authenticate the “Review and book your trip” webpage and terms of use in effect
on September 2, 2014. (See Davis v. USA Nutra Labs (D.N.M. 2018) 303 F.Supp.3d
1183, 1190 (Davis); Cordas v. Uber Techs., Inc. (N.D. Cal. 2017) 228 F.Supp.3d 985,
987-988.) “ ‘The author’s testimony is not required to authenticate a document [citation];
instead, its authenticity may be established by the contents of the writing [citation] or by
other means [citation]).’ ” (Daniel v. Wayans (2017) 8 Cal.App.5th 367, 394.) Wang’s
declaration was sufficient to authenticate the exhibits attached to the declaration.

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 The Belands claim the “Review and book your trip” webpage Expedia submitted
was not a true and correct copy of the webpage Denae saw when she booked the Belands’
trip. They argue the webpage Expedia submitted was a cropped version of the actual
webpage. We do not consider those assertions because the Belands did not support them
with citation to the record. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211,
1239-1240 (City of Lincoln) [reviewing court may disregard contentions unsupported by
citation to the record]; Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 (Miller)
[assertion that is unsupported by record reference is forfeited].)
The Belands have failed to establish that the trial court abused its discretion in
denying their objections to the Wang declaration.
II
The Belands next challenge the trial court’s refusal to admit the following
documents: declarations they filed after briefing was complete and after the trial court
had issued its tentative ruling, and a printout that Denae offered at the hearing on
Expedia’s motion.
A
About a month after the trial court issued its tentative ruling on Expedia’s motion
to stay or dismiss, the Belands filed declarations of Brian and Denae in opposition to the
motion. Approximately five weeks later, at the hearing on Expedia’s motion, Denae also
asked the trial court to consider a printout of a webpage she said she obtained when she
visited Expedia’s website on September 14, 2017. The trial court declined to consider the
declarations and printout because they were not submitted with the Belands’ opposition
papers and the printout was presented for the first time at the hearing.
Regarding the printout, the Belands now claim that prior to the hearing, Denae did
not think to visit Expedia’s website to prove what the “Review and book your trip”
webpage actually looked like on September 2, 2014, because she thought the trial court
would sustain her evidentiary objections. The Belands assert that after the trial court

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posted its tentative ruling overruling their evidentiary objections, Denae understood that
she needed to offer evidence that the screenshot attached to Wang’s declaration was
inaccurate. The Belands contend Denae’s omission was excusable neglect and the trial
court abused its discretion in refusing to accept the printout offered at the hearing.
As for the declarations, the Belands claim they filed the declarations after the trial
court issued its tentative ruling because the tentative ruling brought to their attention that
statements made within their opposition memorandum were not admissible evidence.
The Belands explain that this action was the first lawsuit Denae had ever filed and she
mistakenly believed statements in a memorandum of points and authorities constituted
evidence. The Belands assert that the late filing of the declarations was due to excusable
neglect.
B
All papers opposing a motion must be filed with the trial court and a copy served
on each party at least nine court days before the hearing, unless the trial court permits a
shorter time. (§ 1005, subd. (b); Cal. Rules of Court, rule 3.1300(b).) The declarations
and printout were not filed within the time required for filing opposing papers. The trial
court had discretion not to consider the late-filed papers. (Cal. Rules of Court,
rule 3.1300(d); Super. Ct. El Dorado County, Local Rules, rule 7.10.02(D) (July 1, 2017
edition).)
A trial court may, upon any terms as may be just, relieve a party from a judgment,
dismissal, order, or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect. (§ 473, subd. (b).) Application for such
relief shall be made within a reasonable time, in no case exceeding six months after the
judgment, dismissal, order, or proceeding was taken. (§ 473, subd. (b).) The party
seeking relief bears the burden of establishing a right to relief. (Hopkins & Carley v.
Gens (2011) 200 Cal.App.4th 1401, 1410.) The Belands did not file a motion for relief

8
under section 473. On appeal, however, they nevertheless argue that the “late evidence
was due to excusable neglect.”
We conclude that the Belands fail to show that Denae’s omissions constituted
excusable neglect. As for the declarations, a party opposing a motion must present
admissible evidence, such as declarations, to establish contradictory facts. (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶¶
9:103-9:103.2.) Statements contained in a brief are not evidence. (In re Zeth S. (2003)
31 Cal.4th 396, 413, fn. 11; Brehm Communities v. Superior Court (2001) 88
Cal.App.4th 730, 735.) The Belands do not establish that Denae’s mistake about, or
ignorance of, the law would justify relief for excusable neglect. (See Anderson v.
Sherman (1981) 125 Cal.App.3d 228, 238 [ignorance of the law coupled with negligence
in ascertaining it justifies denial of section 473 relief].)
With regard to the printout, Expedia’s moving papers relied on the Wang
declaration and exhibits to argue there was assent and adequate notice to bind the Belands
to the terms of use. The Belands opposed the motion by analyzing the design and
language used in the “Review and book your trip” webpage attached to the Wang
declaration and arguing the webpage presented an unenforceable browsewrap agreement.
The Belands claimed they did not assent to Expedia’s terms of use and did not receive
adequate notice of the forum selection clause in the terms of use. Under those
circumstances, the Belands’ assertion of a belated understanding by Denae about the
significance of the exhibits to the Wang declaration would not justify relief under
section 473. (See Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013)
217 Cal.App.4th 1096, 1112 [trial court did not abuse its discretion in denying relief
under section 473 based on the attorney’s excusable neglect where the attorney failed to
introduce readily available evidence which supported its client’s position because it was
not a mistake that a reasonably prudent person in the same circumstances might have
made but rather conduct falling below the professional standard of care];

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Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 17 (Wiz
Technology) [“Section 473 cannot be used to remedy attorney mistakes, such as the
failure to provide sufficient evidence in opposition to a summary judgment motion. . . .
Counsel’s failure to understand the type of response required or to anticipate which
arguments would be found persuasive does not warrant relief under section 473.”].)
In addition, the Belands did not act promptly to submit the declarations and
printout. (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016)
2 Cal.App.5th 252, 262; Wiz Technology, supra, 106 Cal.App.4th at p. 17.) They filed
their declarations about one month after the trial court posted its tentative ruling without
providing the trial court with an explanation for their delay in filing them. And although
Expedia filed the Wang declaration more than four months before the trial court heard
Expedia’s motion, the Belands did not seek to offer the printout until the hearing.
Further, the Belands failed to seek leave to submit the printout as new evidence during
the approximately five-week interim between the issuance of the trial court’s tentative
ruling and the hearing. The record does not disclose any good cause for the delay in
offering the printout.
Evidence received at a law and motion hearing must be by declaration or request
for judicial notice without testimony or cross-examination, unless the court orders
otherwise for good cause shown. (Cal. Rules of Court, rule 3.1306(a); Reifler v. Superior
Court (1974) 39 Cal.App.3d 479, 483-485.) The Belands did not seek permission to
introduce oral evidence at the hearing pursuant to rule 3.1306(b). In any event, the
Belands fail to show how the printout was relevant, given that it was obtained years after
the Belands booked their trip and there is no evidence the webpage had not changed
during that time.
The Belands have not established abuse of discretion regarding their declarations
or the printout.

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 III
The Belands further claim the trial court erred in concluding that Expedia’s
“Review and book your trip” webpage was a clickwrap agreement rather than a
browsewrap agreement. We conclude Expedia’s final booking webpage was more like a
browsewrap agreement.
Courts have described internet-based contracts as falling within general types,
including clickwrap and browsewrap agreements. (Berkson v. Gogo LLC (E.D.N.Y.
2015) 97 F.Supp.3d 359, 394-395 (Berkson).) A clickwrap agreement requires a user to
click a box on the webpage indicating acceptance of the terms of use (which have been
presented to the user) before the user is allowed to proceed. (Long v. Provide Commerce,
Inc. (2016) 245 Cal.App.4th 855, 862; Berkson, at p. 397; see, e.g. Davis, supra, 303
F.Supp.3d at p. 1190.) A browsewrap agreement does not require a user to manifest
assent to the terms of use by clicking a box; instead, simply by using the website, the user
is deemed to have accepted the terms of use, which are posted somewhere on the website
via a hyperlink. (Long, at p. 862; Berkson, at p. 395.) “ ‘ “[I]n a pure-form browsewrap
agreement, ‘the website will contain a notice that -- by merely using the services of,
obtaining information from, or initiating applications within the website -- the user is
agreeing to and is bound by the site’s terms of service.’ ” ’ ” (Long, at p. 862.) A user
can continue to use the website without clicking the hyperlink for the terms of use.
(Ibid.)
Here, the “Review and book your trip” webpage was more like a browsewrap
agreement. The user was not required to click a button expressly saying something like
“I have read and accept the terms of use” before proceeding to finalize the transaction. In
addition, the terms of use were not displayed on the “Review and book your trip”
webpage; a user had to click a hyperlink to view the terms of use.

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 We do not consider the Belands’ assertions, made without citations to the record,
about a different version of the “Review and book your trip” webpage. (City of Lincoln,
supra, 102 Cal.App.4th at pp. 1239-1240; Miller, supra, 101 Cal.App.4th at p. 743.)
That a user had to click a hyperlink to view the terms of use does not necessarily
defeat a finding of assent. (Feld v. Postmates, Inc. (S.D.N.Y. 2020) 442 F.Supp.3d 825,
831(Feld) [stating in a case applying California law that clicking a hyperlink is the 21st
century equivalent of turning over a document to read the fine print]; Meyer v. Uber
Techs., Inc. (2d Cir. 2017) 868 F.3d 66, 78-79 [applying California law].) And whether
Denae actually clicked on the hyperlink for terms of use and read the terms is immaterial.
(Feld, at p. 831; see generally Marin Storage & Trucking, Inc. v. Benco Contracting &
Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049 (Marin Storage) [failing to read a
contract before signing is not a ground for avoiding the contract].) What matters is
whether the “By selecting to complete this booking” sentence on the “Review and book
your travel” webpage would put a reasonably prudent consumer on notice that his or her
booking would be subject to Expedia’s terms of use. (Feld, at p. 831.)
Expedia certainly could have done more to make it clear to consumers that by
clicking the “Complete Booking” button, Expedia would deem them to have accepted the
terms of use. For example, Expedia could have highlighted the “By selecting to complete
this booking” sentence and placed it right next to the “Complete Booking” button, rather
than placing other highlighted items in between them. But in this particular case, the
consumer -- Denae -- is an attorney trained in the importance of reading and
understanding contract language. And courts have enforced terms of use against online
consumers in cases involving websites or mobile applications similar to Expedia’s
“Review and book your travel” webpage. (Feld, supra, 442 F.Supp.3d at p. 829-831;
In re Facebook Biometric Info. Privacy Litigation (N.D.Cal. 2016) 185 F.Supp.3d 1155,
1163, 1166; Fteja v. Facebook, Inc. (S.D.N.Y. 2012) 841 F.Supp.2d 829, 833, 835, 840-
841; Swift v. Zynga Game Network, Inc. (N.D. Cal. 2011) 805 F.Supp.2d 904, 911; but

12
see Berkson, supra, 97 F.Supp.3d at pp. 373-374, 404.) Based on these specific
circumstances, the “Review and book your travel” webpage gave Denae sufficient
inquiry notice for us to conclude that Denae assented to the Expedia terms of use.
But that is not the end of our inquiry. The terms of use are still subject to
challenge if they are not fair and reasonable. We address whether the terms of use are
fair and reasonable in subsequent portions of this opinion.
IV
The Belands argue that the terms of use contained a venue selection clause rather
than a forum selection clause and that venue selection clauses are void as a matter of law.
A forum selection clause chooses a court from among different states or nations.
(Alexander v. Superior Court (2003) 114 Cal.App.4th 723, 727.) In contrast, a “venue
selection clause is purely an intrastate issue involving the selection of a county [within a
state] in which to hold the trial.” (Ibid., fn. omitted.)
The provision at issue here provides in pertinent part: “You hereby consent
to the exclusive jurisdiction and venue of courts in King County, Washington, USA,
in all disputes arising out of or relation to the use of this Website.” The provision
is a mandatory forum selection clause. (Olinick v. BMG Entertainment (2006)
138 Cal.App.4th 1286, 1294 (Olinick).) It requires disputes arising out of the use
of Expedia’s website to be litigated in a specific county in the state of Washington.
The procedure for enforcing a forum selection clause is a special type of motion
to stay or dismiss for forum non conveniens pursuant to section 410.30 or 418.10.
(§§ 410.30, subd. (a), 418.10, subd. (a)(2); Bushansky v. Soon-Shiong (2018)
23 Cal.App.5th 1000, 1005; Olinick, supra, 138 Cal.App.4th at p. 1294; Berg v. MTC
Electronic Technologies Co. (1998) 61 Cal.App.4th 349, 358 (Berg).) In circumstances
like this one involving a mandatory forum selection clause, the factors relevant to a
traditional forum non conveniens analysis do not control. (Intershop Communications
AG v. Superior Court (2002) 104 Cal.App.4th 191, 198 (Intershop); Cal-State Business

13
Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1682-1683 (Cal-State).)
The mandatory forum selection clause is presumed valid and will be enforced unless the
party resisting enforcement of the clause shows that enforcement would be unreasonable
or unfair under the circumstances of the case. (Verdugo v. Alliantgroup, L.P. (2015)
237 Cal.App.4th 141, 147 (Verdugo); Trident Labs, Inc. v. Merrill Lynch Commercial
Finance Corp. (2011) 200 Cal.App.4th 147, 154.) This favored treatment is attributed to
the freedom to contract and the important role forum selection clauses play in facilitating
national and international commerce. (Net2Phone, Inc. v. Superior Court (2003)
109 Cal.App.4th 583, 587-588 (Net2Phone); America Online, Inc. v. Superior Court
(2001) 90 Cal.App.4th 1, 11-12 (America Online).) Although a mandatory forum
selection clause cannot completely eliminate a trial court’s discretion to make appropriate
rulings regarding choice of forum, the modern trend is to enforce mandatory forum
selection clauses unless they are unfair or unreasonable. (Smith, Valentino & Smith, Inc.
v. Superior Court (1976) 17 Cal.3d 491, 495 (Smith); Olinick, supra, 138 Cal.App.4th at
p. 1294; Berg, supra, 61 Cal.App.4th at p. 358.)
To resist enforcement of an otherwise applicable forum selection clause, a party
may show that the chosen forum would be unavailable or unable to accomplish
substantial justice or that no rational basis exists for the choice of forum, such as if the
chosen forum has no logical connection with any party or the transaction. (Verdugo,
supra, 237 Cal.App.4th at p. 147; Intershop, supra, 104 Cal.App.4th at p. 199; America
Online, supra, 90 Cal.App.4th at p. 12 & fn. 5; Cal-State, supra, 12 Cal.App.4th at
pp. 1679, 1681-1682.) In addition, California courts “will refuse to defer to the selected
forum if to do so would substantially diminish the rights of California residents in a way
that violates our state’s public policy.” (America Online, supra, 90 Cal.App.4th at p. 12;
see Vita Planning & Landscape Architecture, Inc. v. HKS Architects, Inc. (2015) 240
Cal.App.4th 763, 774-777; Intershop, supra, 104 Cal.App.4th at p. 200.)

14
 The Belands appear to argue that enforcement of the forum selection clause in
Expedia’s terms of use was unreasonable or unfair under the circumstances of this case
because the clause was unconscionable and the terms of use were illusory. We turn to
those claims in parts V and VI of this opinion.
V
The Belands contend the trial court erred in concluding that Expedia’s terms of
use were not unconscionable.
We review a trial court’s resolution of disputed facts for substantial evidence and
determine de novo whether the facts so found constitute unconscionability. (Ajamian v.
CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795 (Ajamian); Gutierrez v. Autowest,
Inc. (2003) 114 Cal.App.4th 77, 89; Marin Storage, supra, 89 Cal.App.4th at p. 1055.)
A court may refuse to enforce a contract if it finds as a matter of law that the
contract or a clause within the contract was unconscionable at the time it was made.
(Civ. Code, § 1670.5, subd. (a).) Unconscionability consists of procedural and
substantive elements. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910
(Sanchez).) “ ‘ “The prevailing view is that [procedural and substantive
unconscionability] must both be present in order for a court to exercise its discretion to
refuse to enforce a contract or clause under the doctrine of unconscionability.”
[Citation.] But they need not be present in the same degree. “Essentially a sliding scale is
invoked . . . .” [Citations.] In other words, the more substantively oppressive the
contract term, the less evidence of procedural unconscionability is required to come to the
conclusion that the term is unenforceable, and vice versa.’ [Citation.] Courts may find a
contract as a whole ‘or any clause of the contract’ to be unconscionable.” (Ibid., italics
omitted.)
Unconscionability is a fact-specific inquiry, requiring examination of the totality
of a contract’s terms as well as the circumstances of its formation. (Sonic-Calabasas A,
Inc. v. Moreno (2013) 57 Cal.4th 1109, 1146.) “The ultimate issue in every case is

15
whether the terms of the contract are sufficiently unfair, in view of all relevant
circumstances, that a court should withhold enforcement.” (Sanchez, supra, 61 Cal.4th at
p. 912.) The party asserting unconscionability bears the burden of proving procedural
and substantive unconscionability. (Id. at p. 911; Crippen v. Central Valley RV Outlet
(2004) 124 Cal.App.4th 1159, 1165 (Crippen).)
A
Although the trial court found the Expedia terms of use to be procedurally
unconscionable, the Belands nevertheless argue the trial court erred in concluding, on a
sliding scale, that it was a low degree of procedural unconscionability.
Procedural unconscionability looks at the circumstances of contract negotiation
and formation, focusing on oppression or surprise due to unequal bargaining power.
(Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012)
55 Cal.4th 223, 246 (Pinnacle Museum).) “ ‘ “Oppression occurs where a contract
involves lack of negotiation and meaningful choice, surprise [occurs] where the allegedly
unconscionable provision is hidden within a prolix printed form.” ’ ” (Id. at p. 247.)
Although this case does not involve the type of economic pressure present in
employment situations, the trial court correctly determined there were elements of
procedural unconscionability present. With regard to oppression, Expedia’s terms of use
were presented on a take-it-or-leave-it basis. The terms of use provided that use of
Expedia’s website required acceptance of all the Expedia terms and conditions without
modification. On the other hand, there is no evidence the Belands had to use Expedia’s
website to make travel arrangements or that they could not have looked elsewhere to
purchase airplane tickets and make hotel reservations that would have permitted them to
litigate a dispute in California. “ ‘ “[T]he ‘oppression’ factor . . . may be defeated, if the
complaining party has a meaningful choice of reasonably available alternative sources of
supply from which to obtain the desired goods and services free of the terms claimed to
be unconscionable.” ’ ” (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1572

16
(Parada); see Crippen, supra, 124 Cal.App.4th at p. 1165; Marin Storage, supra,
89 Cal.App.4th at pp. 1054, 1056.)
With regard to surprise, there was no evidence that Denae was not given
an opportunity to read the entire terms of use before booking. (Parada, supra,
176 Cal.App.4th at p. 1571 [in assessing procedural unconscionability, the appellate court
considered whether the plaintiffs were given ample time to read the defendant’s form
agreement before signing].) And forum selection clauses are not uncommon in internet-
based contracts. (See America Online, supra, 90 Cal.App.4th at p. 12.) Nevertheless, the
“Review and book your trip” webpage did not present the terms of use to Denae on the
same page or require her to click on a button expressly stating that she had read and
accepted the terms of use. The structure of the terms of use also did not call attention to
the forum selection clause. The clause was on page 10 of an 11-page document. The
terms of use did not contain a table of contents. The forum selection clause was in the
third paragraph of a section titled “General.” It was placed in a section addressing a wide
variety of topics and in a paragraph discussing at least three different issues, instead of in
a separate section and under a separate heading. (Cf. Pinnacle Museum, supra, 55
Cal.4th at p. 247, fn. 12 [affirming finding of no surprise where arbitration provisions
appeared in section titled “Resolution of Construction Disputes by Arbitration” within an
article titled “Construction Disputes” and the section had subsections].) We do not
consider the Belands’ claims that the terms of use hyperlink was hidden and that Denae
was rushed to complete the booking because they are not supported by a citation to the
record. (City of Lincoln, supra, 102 Cal.App.4th at pp. 1239-1240; Miller, supra,
101 Cal.App.4th at p. 743.)
The above circumstances created significant procedural unconscionability.
(Sanchez, supra, 61 Cal.4th at p. 915; Parada, supra, 176 Cal.App.4th at p. 1573.)
We turn next to whether the terms of the contract are also substantively unconscionable.
(Sanchez, at p. 915; Parada, at p. 1570 [both procedural and substantive

17
unconscionability must be present for a court to refuse to enforce a contract due to
unconscionability].)
B
The Belands claim the forum selection clause was substantively unconscionable
because it imposed an unreasonable burden on them, provided no notice as to the state
and county in which they would be forced to litigate, and provided no mutual right to sue
in their own state.
Substantive unconscionability focuses on the actual terms of the contract and
assesses whether those terms are overly harsh or one-sided, “that is, whether contractual
provisions reallocate risks in an objectively unreasonable or unexpected manner.” (Serpa
v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 703 (Serpa); see
Pinnacle Museum, supra, 55 Cal.4th at p. 246.) A contract term is not substantively
unconscionable merely because it gives one side a greater benefit; it must be so one-sided
as to “shock the conscience.” (Serpa, at p. 703; accord Sanchez, supra, 61 Cal.4th
at p. 911 [not all one-sided contract provisions are unconscionable].) “ ‘The
unconscionability doctrine ensures that contracts, particularly contracts of adhesion,
do not impose terms that have been variously described as “ ‘ “overly harsh” ’ ” [citation]
“ ‘unduly oppressive’ ” [citation], “ ‘so one-sided as to “shock the conscience” ’ ”
[citation], or “unfairly one-sided” [citation]. All of these formulations point to the central
idea that unconscionability doctrine is concerned not with “a simple old-fashioned bad
bargain” [citation] but with terms that are “unreasonably favorable to the more powerful
party” [citation].’ ” (Sanchez, supra, 61 Cal.4th at pp. 910-911.)
We conclude the forum selection clause was not so unduly oppressive or one-sided
as to shock the conscience. The forum selection clause created a bilateral obligation,
requiring both Expedia and the consumer to bring any action relating to the use of the
website in Washington. (Cf. Armendariz v. Foundation Health Psychcare Services, Inc.

18
(2000) 24 Cal.4th 83, 115-121; Ajamian, supra, 203 Cal.App.4th at pp. 798, 802; Fitz v.
NCR Corp. (2004) 118 Cal.App.4th 702, 713, 725.)
Additionally, designating Washington as the forum for resolving disputes
involving Expedia’s website was not unreasonable because Washington was Expedia’s
place of incorporation and principal place of business. (Verdugo, supra, 237 Cal.App.4th
at p. 147 [a forum selection clause is reasonable if it has a logical connection with at least
one of the parties or their transaction].) It was reasonable that Expedia would want
lawsuits involving its website to be conducted where its principal place of business was
located, where its users and the travel-related goods and services it offered can be from or
involve a multitude of states and countries. (See Carnival Cruise Lines, Inc. v. Shute
(1991) 499 U.S. 585, 595 [113 L.Ed.2d 622]; CQL Original Products, Inc. v. National
Hockey League Players’ Assn. (1995) 39 Cal.App.4th 1347, 1355; Lu v. Dryclean-U.S.A.
of California, Inc. (1992) 11 Cal.App.4th 1490, 1493, fn. 2 (Lu); Polimaster Ltd. v. RAE
Sys. (9th Cir. 2010) 623 F.3d 832, 837.)
As for the Belands’ claim that enforcing the forum selection would unreasonably
burden them, the Belands did not timely present evidence that requiring them to
prosecute their claims in Washington would impose an undue burden. In any event, the
California Supreme Court has held that “ ‘[m]ere inconvenience or additional expense is
not the test of unreasonableness [for a mandatory forum selection clause].’ ” (Smith,
supra, 17 Cal.3d at p. 496; accord Net2Phone, supra, 109 Cal.App.4th at p. 588 [noting
that California courts routinely enforce forum selection clauses even where the chosen
forum is far from the plaintiff’s residence]; America Online, supra, 90 Cal.App.4th at
p. 19 [“the additional cost or inconvenience necessitated by litigation in the selected
forum is not part of the calculus when considering whether a forum selection clause
should be enforced”]; Lu, supra, 11 Cal.App.4th at p. 1493 [rejecting argument that
litigating in chosen forum of Florida would be inconvenient for the California resident
plaintiffs].)

19
 The Belands further assert they never expected other contract terms, such as a
complete liability disclaimer. To the extent they now contend those terms are
substantively unconscionable, we do not consider the claims because they were not raised
in the trial court and are made in a perfunctory manner. (People v. Freeman (1994)
8 Cal.4th 450, 482, fn. 2; Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422; Damiani v.
Albert (1957) 48 Cal.2d 15, 18.)
Bolter v. Superior Court (2001) 87 Cal.App.4th 900, a case upon which the
Belands rely heavily, is distinguishable. Unlike Bolter, which involved franchisees with
established relationships with a franchisor, there is no evidence the Belands had to book a
vacation package using Expedia. (Bolter, at p. 907.) Also unlike Bolter, there is no
evidence Expedia moved its headquarters from California to Washington after Denae
used its website or that the terms of use in effect at the time Denae used the website did
not contain a forum selection clause requiring Expedia users to litigate disputes in
Washington.
Because both procedural and substantive unconscionability must be present for a
court to exercise its discretion to refuse to enforce a contract provision under the doctrine
of unconscionability (Sanchez, supra, 61 Cal.4th at p. 910) and the Belands have not
demonstrated that the forum selection clause was substantively unconscionable, we
conclude the trial court did not err in rejecting the Belands’ unconscionability claim.
VI
The Belands also argue that the terms of use were illusory because they contained
a unilateral modification provision.
The terms of use provided in pertinent part, “This Website is offered to you
conditioned upon your acceptance without modification of all the terms, conditions, and
notices set forth below (collectively, the “Terms of Use” or “Agreement”). Please read
the Terms of Use carefully. By accessing or using this Website, booking any reservations
for travel products or services on this Website, or contacting our call center agents, you

20
agree that the Terms of Use then in force shall apply. If you do not agree to the Terms of
Use, please do not use or book any reservations through this Website or our call center
agents. Expedia may at any time change these Terms of Use and your continued use of
this Website is conditioned upon acceptance of the updated Terms of Use.”
To the extent the Belands contend that the above-quoted provision permitted
Expedia to retroactively change the terms of use applicable to her transaction, we
disagree. In interpreting a contract, we “ ‘[give] effect to the mutual intention of the
parties as it existed’ at the time the contract was executed. [Citation.] Ordinarily, the
objective intent of the contracting parties is a legal question determined solely by
reference to the contract’s terms. [Citation.]” (Wolf v. Walt Disney Pictures &
Television (2008) 162 Cal.App.4th 1107, 1126.) In general, we interpret the words of a
contract in their ordinary sense. (Civ. Code, § 1644.) We also interpret a contract in a
manner that will “make it lawful, operative, definite, reasonable, and capable of being
carried into effect, if it can be done without violating the intention of the parties.”
(Civ. Code, § 1643.)
Applying those principles, we conclude the provision sought to impose the terms
of use in effect at the time a consumer used Expedia’s website or contacted Expedia’s
call center. The terms of use did not say any updated terms of use applied retroactively
to completed transactions or accrued claims.
In addition, the implied covenant of good faith and fair dealing, which the law
implies in every contract (Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 818),
limited Expedia’s authority to modify the terms of use. (Serpa, supra, 215 Cal.App.4th
at pp. 706-708.) A contract provision permitting a party to unilaterally modify contract
terms does not permit that party to change the terms in such a manner as to frustrate the
purpose of the contract. (Id. at p. 706; accord Harris v. TAP Worldwide, LLC (2016)
248 Cal.App.4th 373, 390; Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th
165, 176 [“Because California law prevents a party from exercising a discretionary

21
power, such as the power to modify, in bad faith or in a way that deprives the other party
of the benefits of the agreement, [the defendant’s] right to modify its ‘policies or
practices at any time’ does not render the arbitration agreement illusory.”]; Peng v. First
Republic Bank (2013) 219 Cal.App.4th 1462, 1473-1474.) The non-California cases the
Belands cite are not in accord with our state court decisions and we do not follow them.
We reject the Belands’ contention that the terms of use were unenforceable because they
were illusory.
VII
The Belands further claim the trial court erred in dismissing their CLRA cause of
action sua sponte.
The second amended complaint alleged that Expedia violated the CLRA by
inserting various unconscionable terms, including the forum selection clause. In
opposing Expedia’s motion, the Belands claimed they suffered damages caused by
Expedia’s attempt to enforce the forum selection clause, and those damages gave them
standing to bring a CLRA claim. The Belands’ claim of standing was not based on
damages caused by any other alleged unconscionable provision in the terms of use.
Because the trial court determined that the forum selection clause was not
unconscionable, it concluded the CLRA cause of action did not require the trial court to
deny enforcement of the forum selection clause. The trial court did not dismiss the
CLRA cause of action.
The Belands assert in their appellate reply brief that a CLRA cause of action
makes a forum selection clause unenforceable, citing America Online, supra,
90 Cal.App.4th 1. That is not the holding of America Online. (Id. at pp. 4-5, 14-18.)
And the Belands do not contend nor explain how enforcement of the forum selection
clause would require them to waive their rights under the CLRA.

22
 VIII
The Belands also argue that the trial court erred in rejecting their proposed settled
statement and adopting Expedia’s counter statement.
A
The Belands elected to proceed on appeal with a settled statement under California
Rules of Court, rule 8.137 because there was no court reporter present at the relevant
hearing. They filed a proposed settled statement in the trial court. To provide a summary
of what was said at the hearing, the Belands submitted a 15-page outline that Denae had
used for oral argument, to which Denae added notes about comments by the trial judge
and opposing counsel. The outline also included Denae’s opinions about some of the
judge’s comments. For example, in the section titled “Unenforceable Browsewrap v.
clickwrap - Assent to Terms if [sic] Use” she wrote, “The court could not seem to
understand what I was talking about with the grey scroll bar.”
Expedia objected to the Belands’ proposed settled statement on the ground that it
was not a full, fair and objective summary of the hearing and was merely an outline of
Denae’s oral argument and her opinion about the trial court’s tentative ruling. Expedia
said the Belands’ proposed settled statement was too argumentative. Accordingly,
Expedia offered its own proposed statement.
The trial court sustained Expedia’s objections, struck the Belands’ proposed
settled statement and adopted Expedia’s proposed statement.
B
A settled statement is a summary of the trial court proceedings, approved by the
trial court. (Cal. Rules of Court, rule 8.137(a).) An appellant may elect to use a settled
statement as the record of the oral proceedings in the trial court when designated oral
proceedings in the trial court were not reported by a court reporter. (Cal. Rules of Court,
rule 8.137(a), (b)(1).)

23
 An appellant’s proposed settled statement must contain a condensed narrative of
the oral proceedings specified in the notice designating the record on appeal. (Cal. Rules
of Court, rule 8.137(d)(2).) The narrative must include a concise factual summary of the
evidence and the testimony of each witness relevant to the points being raised on appeal.
(Cal. Rules of Court, rule 8.137(d)(2).) In settling the statement of the oral proceedings,
a trial court may rely on the trial judge’s own memory, the notes made by the judge
during the trial and the suggestions of the respondents. (Western States Constr. Co. v.
Municipal Court of San Francisco (1951) 38 Cal.2d 146, 150.) We review the trial
court’s decision regarding a proposed settled statement for abuse of discretion. (Randall
v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall); Sidebotham v. Superior Court
(1958) 161 Cal.App.2d 624, 628 (Sidebotham).)
The Belands contend the trial court abused its discretion in striking their proposed
settled statement because a trial court may not eliminate an appellant’s specification of
the grounds of appeal from the proposed statement. But a trial court does not abuse its
discretion in striking a proposed settled statement that is “too incomplete, inaccurate and
distorted to serve as a basis for amendment and correction, short of preparing an entirely
new statement.” (Sidebotham, supra, 161 Cal.App.2d at pp. 626-627; see also Randall,
supra, 2 Cal.App.5th at p. 934.) Here, the trial court found the Belands’ proposed
summary of the hearing was not an accurate or fair reflection of the oral proceedings, and
that Expedia’s proposed settled statement was an accurate summary of those proceedings.
The judge who settled the statement of oral proceedings was the same judge who
presided over the hearing on Expedia’s stay or dismissal motion and was in a position to
assess the accuracy of the proposed statements.
On appeal, the Belands disagree that their proposed settled statement was
inaccurate. As appellants, they bear the burden of providing an adequate record
demonstrating error. (Randall, supra, 2 Cal.App.5th at pp. 932, 935.) Based on the
record on appeal, it appears the trial court did not abuse its discretion. The trial judge

24
was in the best position to assess the accuracy and adequacy of the Belands’ proposed
statement. (Sidebotham, supra, 161 Cal.App.2d at p. 628.) Further, the Belands fail to
demonstrate that the trial court’s ruling prejudiced them. (§ 475.)
Citing Government Code section 68086 and California Rules of Court, rule
2.956(b)(3), the Belands also argue the trial court failed to comply with mandatory rules
regarding access to a court reporter. The Belands again fail to demonstrate any error.
“Each trial court must adopt and post in the clerk’s office a local policy enumerating the
departments in which the services of official court reporters are normally available, and
the departments in which the services of official court reporters are not normally
available during regular court hours. If the services of official court reporters are
normally available in a department only for certain types of matters, those matters must
be identified in the policy.” (Cal. Rules of Court, rule 2.956(b)(1).) A court may adopt
the policy required in rule 2.956(b)(1) as a local rule. (Cal. Rules of Court, rule
2.956(b)(2)(B).) If the services of an official court reporter will not be available during a
hearing on a law and motion matter, that fact must be noted on the court’s official
calendar. (Cal. Rules of Court, rule 2.956 (b)(4).) If the services of an official court
reporter are not available for a hearing in a civil case, a party may arrange for the
presence of a certified shorthand reporter to serve as an official pro tempore reporter.
(Cal. Rules of Court, rule 2.956(c).)
Consistent with rule 2.956, the local rules for El Dorado County Superior Court
provided that “[c]ourt reporters shall be available for all hearings in any calendared
matter, except no court reporter is provided or an official record of proceedings made in
traffic, small claims, and limited unlawful detainer proceedings. . . . In all matters in
which the court does not provide a court reporter, one or more parties may elect to have a
reporter present; however, the reporter shall be obtained by and at the expense of one or
more parties. [¶] . . . [¶] In Superior Court, there shall be a court reporter fee as set in
the court’s Uniform Civil Fee Schedule. All parties shall provide, and post, court

25
reporter fees pursuant to Government Code section 68086. Fees for proceedings lasting
less than one hour shall be posted by the moving party at the time of filing. Fees for
proceedings lasting more than one hour, including trials, shall be posted as directed by
the court or at the beginning of any long cause hearing or trial.” (Super. Ct. El Dorado
County, Local Rules, rule 2.00.07 (July 1, 2017 edition).)
The record shows there was a court reporter in other law and motion proceedings
in this case, but there was no court reporter present when the trial court heard Expedia’s
stay or dismissal motion. The record does not indicate that the services of a court
reporter were not available for the hearing on Expedia’s motion. A court reporter is
available in a civil case on the order of the court or at the request of a party. (§ 269.) The
record on appeal does not show whether a party requested a court reporter for the hearing
on Expedia’s motion pursuant to section 269. Government Code section 68086 requires
the payment of a fee for the cost of the court reporting services. The record does not
show whether the required court reporting services fee was paid. We cannot discern on
this record that there was trial court error.
DISPOSITION
The trial court’s order is affirmed. Respondent shall recover its costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)

/S/
MAURO, Acting P. J.

We concur:

/S/
MURRAY, J.

/S/
KRAUSE, J.

26
Appendix

27