Filed 2/2/24 Molica v. Tempur-Sealy International CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CODY MOLICA,
Plaintiff and Appellant,
A167541
v.
TEMPUR-SEALY (San Francisco County
INTERNATIONAL, INC., Super. Ct. No. CGC20584681)
Defendant and Respondent.
Appellant Cody Molica bought a $100 set of two pillows online.
Apparently unsatisfied with his purchase, he attempted to return the pillows,
to be advised that such a return was not permitted. Molica filed suit against
the seller, alleging three causes of action. And judgment was entered against
Molica, after a demurrer was sustained without leave to amend as to the first
cause of action, and summary adjudication granted on the other two. We
affirm that judgment.
BACKGROUND
The Facts
On May 4, 2020, Molica ordered two Temper-Cloud pillows through the
online ordering portal of Tempur-Sealy International, Inc. (TSI). The pillows
were delivered on May 11, and the next day Molica sent an email to TSI
1
requesting that the pillows be exchanged. On May 14, TSI emailed Molica,
advising that the returns on pillows were not accepted given the personal
nature of the product. Six days later, Molica filed this lawsuit.
The Proceedings Below
On May 22, Molica filed a complaint against TSI, followed a few
months later by a first amended complaint (FAC), the operative pleading
here.1 This complaint alleged three causes of action, styled as follows:
(1) breach of implied covenant of good faith and fair dealing; (2) violation of
the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.); and
(3) unfair business practices under California’s unfair competition law (UCL)
(Bus. & Prof. Code, § 17200 et seq.).
TSI filed a demurrer, Molica an opposition, and TSI a reply. The
demurrer was set for hearing on December 15, prior to which the court had
issued a tentative ruling. The matter was not argued,2 and the court adopted
its tentative ruling, which (1) sustained the demurrer to the first cause of
action without leave to amend, and (2) overruled the demurrer to the second
and third causes of action. Doing so, the trial court agreed with Molica that
the declaration and attached exhibits that TSI filed in support of its
demurrer (and were not filed as part of its request for judicial notice) would
not be considered in ruling on the demurrer.
TSI filed its answer, and various discovery ensued, including written
discovery to Molica and the taking of his deposition.
On October 27, 2021, TSI filed a motion for summary judgment or, in
1 While the reason for the amended complaint is not in the record, what
is there reveals a “meet and confer” letter from TSI’s counsel advising of the
intent to file a demurrer to the original complaint.
2 Molica did not appear at the hearing; TSI’s counsel did, however, for
the purpose of seeking “clarification” of the tentative ruling.
2
the alternative, summary adjudication, set for hearing on December 27. The
motion papers included a memorandum of points and authorities; a request
for judicial notice; a declaration of attorney Solomon Pantuch (that attached
and purported to authenticate 16 exhibits); and a 21-page separate statement
of undisputed material facts, setting forth 83 items under the various causes
of action. The exhibits attached to Mr. Pantuch’s declaration included
various discovery of Molica, including his responses to requests for
admissions, his responses to interrogatories, and his deposition.
Molica filed opposition that included a four-page memorandum of
points and authorities, and his statement of disputed material facts
responding to TSI’s separate statement. Molica’s separate statement
responded to only the first 34 items in TSI’s separate statement—and
disputed only one: “that the TSI website has a hyperlink to the return policy
and also a posted return policy regarding the subject pillows on one of its
pages.”3
TSI filed a reply, and the matter came on as scheduled, on December
27. Prior to the hearing, the court issued a lengthy tentative ruling granting
the motion. Molica did not contest it, and that same day the trial court filed
its order granting the motion, which order began as follows: “[TSI’s] motion
for summary judgment is granted. The Court previously sustained without
leave to amend [TSI’s] demurrer to [Molica’s] first cause of action for breach
of the covenant of good faith and fair dealing. [TSI’s] motion for summary
adjudication is granted as to [Molica’s] second cause of action for violation of
the Consumers Legal Remedies Act (‘CLRA’) and his third cause of action for
3 As to the remainder of the facts in TSI’s separate statement, Molica’s
response said they were “not relevant and are undisputed,” as “[t]he court did
not sustain a CLRA action against [TSI].”
3
violation of the Unfair Competition Law (‘UCL’), which is derivative of his
second cause of action.” (Original boldface omitted.)
The order then referred to some procedural deficiencies in Molica’s
papers, and then continued on with its analysis, a comprehensive analysis
indeed—four single-spaced pages. The order went on to conclude that
summary adjudication was proper because Molica failed to create a triable
issue of material fact regarding TSI’s liability under the CLRA, as he failed to
establish he was exposed to an unlawful practice. The order also concluded
that Molica failed to establish that Civil Code section 1723 was applicable as
it did not pertain to internet purchases. And regarding Business and
Professions Code section 17538, subdivision (d) (section 17538(d)), the order
noted that Molica failed to introduce any evidence or authority to support his
argument that “[a] link to the return policy was not sufficient notice.”
Finally, the order noted that Molica claimed in his opposition that “there was
no posted return policy regarding the subject pillows on one of its pages when
Molica made the purchase.” However, the court found that Molica’s own
deposition testimony established that there was no genuine dispute over this
fact.
Judgment was entered for TSI, from which Molica appealed.
DISCUSSION
Introduction, and Some Comments on the Briefing
Molica has filed a 21-page opening brief that candidly acknowledges
that after “some handwringing over” the timeliness of his notice of appeal, he
filed an opening brief that we “refused to file, citing improprieties in the form
of the brief,” and that he “submits this brief in an effort to comply with the
rules of this court”—a brief we, of course, have filed.
TSI’s respondent’s brief asserts among other things that Molica’s brief
4
is untimely (by “several days”), and fails to comply with some Rules of Court.
Following this criticism, TSI’s brief concludes with this:
“A brief that fails to comply with the California Rules of Court 8.204
content and form requirements can be stricken. (California Rules of Court[,
rule] 8.204(e)). [¶] Appellant submitted a twenty-one-page opening brief.
The brief is incoherent, vague, lacking proper citation, fails to cite to the
record, refers to matters outside the record, and is improperly formatted. [¶]
Without the necessities of an opening brief present, Respondent is left
grasping for the basis of Appellant’s brief. As such, Appellant’s Opening
Brief should be dismissed for failure to properly format.”
We do not read Molica’s brief with the same jaundiced eye, and we do
not accept the invitation to dismiss the appeal. Rather, we reach the
merits—and conclude it has none.
Before explaining why, we note that Molica raises several arguments
under seven separate headings in what appears to be the legal argument
section of his opening brief. However, his arguments are often mixed
indiscriminately throughout, with many of them repeated a number of times
under various headings, and some of them not matching the headings that
they fall under. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [requiring that
there be a separate heading for each discrete legal issue]; see also Provost v.
Regents of University of California (2011) 201 Cal.App.4th 1289, 1294
[appellate court may decline to “consider the loose and disparate arguments
that are not clearly set out in a heading and supported by reasoned legal
argument”].)
Notwithstanding these shortcomings, we will address Molica’s
arguments as best we understand them, which in our view fall into two broad
categories, that the trial court: (1) misinterpreted relevant statutory
5
provisions regarding a seller’s duty to disclose its return policy, and (2) erred
in finding Molica failed to establish a triable issue of fact whether TSI failed
to adequately display its return policy on its website, in violation of the CLRA
and the UCL. Moreover, we address Molica’s arguments in a different order
than he presents them in his opening brief and once we have disposed of an
argument, it will not necessarily be considered again in connection with the
other arguments.
Against this background, we now set forth the general legal principles
governing summary judgment.
Summary Judgment and the Standard of Review
“A party may move for summary judgment in an action or proceeding if
it is contended that the action has no merit . . . .” (Code Civ. Proc., § 437c,
subd. (a)(1).) And summary judgment will be granted “if all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c).)
A defendant “moving for summary judgment bears the burden of
persuasion that there is no triable issue of material fact and that [the
defendant] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) And to prevail, a
defendant must show that one or more elements of the challenged cause of
action cannot be established or that there is a complete defense to it. (Id. at p.
849; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476–477.)
We review a “grant of summary judgment de novo; we must decide
independently whether the facts not subject to triable dispute warrant
judgment for the moving party as a matter of law. [Citations.]” (Intel
Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise
6
our independent judgment, and decide whether undisputed facts have been
established that negate plaintiff’s claims. (Romano v. Rockwell Internat., Inc.
(1996) 14 Cal.4th 479, 487.) As we put it in Fisherman’s Wharf Bay Cruise
Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320: “[W]e exercise an
independent review to determine if the defendant moving for summary
judgment met its burden of establishing a complete defense or of negating
each of the plaintiff’s theories and establishing that the action was without
merit.” (Accord, Certain Underwriters at Lloyd’s of London v. Superior Court
(2001) 24 Cal.4th 945, 972.)
“We accept as true the facts . . . in the evidence of the party opposing
summary judgment and the reasonable inferences that can be drawn from
them” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th
52, 67), and we “ ‘ “view the evidence in the light most favorable to plaintiff[ ]
as the losing part[y].” ’ ” (Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 254.)
In addition to the above is the well-recognized admonition, set forth, for
example, in Claudio v. Regents of the University of California (2005)
134 Cal.App.4th 224, 230 (Claudio) this way: “On review of a summary
judgment, the appellant has the burden of showing error, even if he did not
bear the burden in the trial court. (Byars v. SCME Mortgage Bankers, Inc.
(2003) 109 Cal.App.4th 1134, 1140.) . . . ‘[D]e novo review does not obligate
us to cull the record for the benefit of the appellant in order to attempt to
uncover the requisite triable issues. As with an appeal from any judgment, it
is the appellant’s responsibility to affirmatively demonstrate error and,
therefore, to point out the triable issues the appellant claims are present by
citation to the record and any supporting authority. In other words, review is
limited to issues which have been adequately raised and briefed.’ (Lewis v.
7
County of Sacramento (2001) 93 Cal.App.4th 107, 116.)”
Molica has not even attempted to meet the requirement set forth in
cases such as Claudio. Nor could he, as the trial court got it right.
Summary Judgment Was Properly Granted
The Trial Court Correctly Interpreted the Relevant Statutes
Regarding a Seller’s Duty to Disclose Its Return Policy
We first consider Molica’s arguments pertaining to the interpretation of
Civil Code section 1723 and Business and Professions Code section 17538,
subdivision (d), upon which his CLRA and UCL causes of action are based.
The CLRA makes unlawful various “unfair methods of competition and
unfair or deceptive acts or practices undertaken by any person in a
transaction intended to result or that results in the sale or lease of goods or
services to any consumer. . . .” (Civ. Code, § 1770, subd. (a).) Civil Code
section 1780, subdivision (a) authorizes “[a]ny consumer who suffers any
damage as a result of the use or employment by any person of a method, act,
or practice declared to be unlawful by Section 1770 may bring an action” for
relief. 4 And Civil Code section 1770, subdivision (a) lists 28 acts or practices
defined to be “unlawful” under the CLRA. Although Molica has not specified
in any of his papers below which enumerated activity TSI had allegedly
4 Civil Code section 1782 imposes a condition on a consumer’s ability to
sue for damages under the CLRA. Prior to commencing an action for
damages, the consumer must give notice in writing of the particular CLRA
violations and demand a correction, repair, replacement, or other
rectification. (Civ. Code, § 1782, subd. (a)(1)–(2).) It is undisputed that
Molica did not comply with this notice requirement. At no point prior to or
during the litigation has Molica specified which activity enumerated in Civil
Code section 1770 TSI had allegedly violated. Based on this (along with the
fact that the opposition was filed two days late), the trial court found Molica’s
opposition to the summary judgment motion procedurally defective.
Nonetheless, the court decided the motion on its merits. As do we.
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violated, we understand the alleged unlawful activity to be in substance a
failure to disclose a material fact. (See McAdams v. Monier, Inc. (2010)
182 Cal.App.4th 174, 185 [“[T]he CLRA, pursuant to its list of proscribed
practices in [Civil Code] section 1770, includes the concealment or
suppression of material facts”].) For an omission to be actionable under the
CLRA, the defendant must have a duty to disclose the omitted fact. (See
Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234,
1258, citing Daugherty v. American Honda Motor Co., Inc. (2006)
144 Cal.App.4th 824, 835; Rubenstein v. The Gap, Inc. (2017) 14 Cal.App.5th
870, 881; Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 255.)
Moreover, the plaintiff asserting a CLRA claim must show the omission was
likely to deceive a reasonable consumer. (See Consumer Advocates v.
Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361–1362.)
Similarly, conduct violating the UCL includes “any unlawful, unfair or
fraudulent business act or practice . . . .” (Bus. & Prof. Code, § 17200.) The
UCL’s “coverage is ‘sweeping, embracing “ ‘anything that can properly be
called a business practice and that at the same time is forbidden by law.’ ” ’
[Citation.]” (Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163, 180.) “By proscribing ‘any unlawful’
business practice, ‘section 17200 “borrows” violations of other laws and treats
them as unlawful practices’ that the unfair competition law makes
independently actionable. [Citation.]” (Ibid.) “Virtually any statute or
regulation (federal or state) can serve as a predicate for a UCL unlawful
practice cause of action. [Citation.]” (Gutierrez v. Carmax Auto Superstores
California, supra, 19 Cal.App.5th at p. 1265.) Thus, “a violation of the CLRA
can serve as the predicate for a UCL cause of action.” (Ibid.) In this case, the
trial court construed Molica’s UCL claim as derivative of his CLRA claim,
9
which characterization the parties do not dispute on appeal.
Molica’s CLRA claim, and, by extension, his UCL claim, are in turn
predicated on alleged violations of Civil Code section 1723 and Business and
Professions Code section 17538(d).5 Specifically, Molica argued that under
both statutes, TSI had a duty to conspicuously disclose its “no returns” policy
on its website. This duty, Molica insisted, required TSI to display the actual
terms of its return policy on its website prior to accepting payment for
purchase of a product, not just provide a hyperlink that, when clicked, took
the user to a separate page displaying the terms of the policy.
In granting summary adjudication, the trial court rejected Molica’s
interpretations of the statutes. It concluded (1) that Civil Code section 1723
is inapplicable to internet purchases, and thus the purchase at issue in this
case, and (2) that posting a hyperlink on a seller’s website to its return policy
may under appropriate circumstances satisfy the disclosure requirement in
Business and Professions Code section 17538(d). On appeal, Molica
challenges the court’s conclusions based on the same arguments he raised
below. Like the trial court, we reject Molica’s arguments.
Starting with Civil Code section 1723, that provision states, in relevant
part: “Every retail seller which sells goods to the public in this state that has
a policy as to any of those goods of not giving full cash or credit refunds, or of
not allowing equal exchanges, or any combination thereof, for at least seven
days following purchase of the goods if they are returned and proof of their
5 In its motion for summary judgment, TSI criticized Molica for failing
to explicitly refer to Civil Code section 1723 and Business and Professions
Code section 17538(d) in the FAC. However, in its demurrer, TSI
acknowledged that the FAC “alludes” to those statutory provisions. And in
his opposition to the summary judgment motion, Molica responded that his
second and third causes of action are indeed based on violations of Civil Code
section 1723 and Business and Professions Code section 17538(d).
10
purchase is presented, shall conspicuously display that policy either on signs
posted at each cash register and sales counter, at each public entrance, on tags
attached to each item sold under that policy, or on the retail seller’s order
forms, if any.” (Italics added.)
TSI argued, and the trial court agreed, that Civil Code section 1723
applies only to “brick-and-mortar store fronts,” not online purchases. As he
did below, Molica argues that “completing a transaction through the
internet . . . is the virtual equivalent of traditional paper form contractual
agreements . . . .”
We agree with TSI’s and the trial court’s interpretation. Their
interpretation is supported by the canon of statutory interpretation known as
“noscitur a sociis,” which means that “a word takes meaning from the
company it keeps.” (Martin v. Thi E-Commerce, LLC (2023) 95 Cal.App.5th
521, 532; accord, People v. Prunty (2015) 62 Cal.4th 59, 73 (Prunty).) “ ‘ “In
accordance with this principle of construction, a court will adopt a restrictive
meaning of a listed item if acceptance of a more expansive meaning would
make other items in the list unnecessary or redundant, or would otherwise
make the item markedly dissimilar to the other items in the list.” [Citation.]’
[Citation.]” (Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, 40; Prunty,
at p. 73.) From this perspective, the phrase “order forms” is best interpreted
in light of its relationship to the terms before it—“signs posted at each cash
register and sales counter, at each public entrance, on tags attached to each
item sold under that policy”—which refer to objects and locations of a
physical, rather than digital, nature. (Civ. Code, § 1723, subd. (a).) Even if
the phrase “order forms” could conceivably be understood in different ways in
this particular context, we must stop short of construing it so expansively
that we render the other terms “markedly dissimilar to the other items in the
11
list.” (Kaatz v. City of Seaside, supra, 143 Cal.App.4th at p. 40; Prunty, at
p. 73.) Accordingly, the trial court correctly found section 1723 inapplicable
to online purchases, and thus the purchase at issue in this case.6
We turn to Business and Professions Code section 17538(d), which
provides, in relevant part: “A vendor conducting business through the
Internet or any other electronic means of communication shall do all of the
following when the transaction involves a buyer located in this state: [¶]
(1) Before accepting any payment or processing any debit or credit charge or
funds transfer, the vendor shall disclose to the buyer in writing or by
electronic means of communication, such as e-mail or an on-screen notice, the
vendor’s return and refund policy . . . .” (Bus. & Prof. Code, § 17538, subd.
(d)(1), italics added.)
The parties apparently agreed that Business and Professions Code
section 17538(d) applies to online purchases. However, they disagreed over
what constitutes sufficient disclosure under the statute. Molica argued that
providing “[a] link” to its return policy on its website “is not sufficient notice”
under the statute.
The trial court rejected Molica’s argument, as he failed to provide any
authority to support it. The court found in any event there were cases in the
analogous context of online contract formation that supported a contrary
position, explaining: “As a general matter, courts recognize that conspicuous
hyperlinks are sufficient to place consumers on notice of material terms that
can give rise to binding arbitration agreements and other contracts. (See,
e.g., Nguyen v. Barnes & Noble, Inc. (9th Cir. 2014) 763 F.3d 1171, 1177
6 But assuming it did apply, for the reasons later discussed, we would
conclude that Molica failed to establish a triable issue of whether TSI
conspicuously displayed its return policy on its website.
12
[(Nguyen)] [‘the validity of [a] browsewrap agreement turns on whether the
website puts a reasonably prudent user on inquiry notice of the terms of the
contract’]; Net2Phone, Inc. v. Superior Court (2003) 109 Cal.App.4th 583, 588
[‘We perceive no unfairness in Net2Phone’s requirement that certain
contractual terms must be accessed via hyperlink, a common practice in
Internet business’] [forum selection clause].)” The court added that Molica
“offer[ed] no authority or reason why a different rule should govern retailers’
return and refund policies.”
On appeal, Molica “disagrees” with the trial court’s conclusion and
reasserts that “[h]yperlink [n]otice [f]ails to satisfy the returns notice
requirement in section 17538(d).” However, he once again fails to present
any reasoned argument, much less citation to legal authority, to support his
position. It is a fundamental rule of appellate procedure that the trial court’s
decision “is presumed to be correct and the burden is on an appellant to
demonstrate . . . that the trial court committed an error that justifies reversal
of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608; accord,
Denham v. Superior Court of Los Angeles (1970) 2 Cal.3d 557, 564.) “To
demonstrate error, appellant must present meaningful legal analysis
supported by citations to authority and citations to facts in the record that
support the claim of error. [Citations.] When a point is asserted without
argument and authority for the proposition, ‘it is deemed to be without
foundation and requires no discussion by the reviewing court.’ [Citations.]
Hence, conclusory claims of error will fail.” (In re S.C. (2006)
138 Cal.App.4th 396, 408; see Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956 [“ ‘ “When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.” ’ [Citation.] ‘We are not bound to
13
develop appellant[’s] argument for [him]. [Citation.]’ ”].) These principles
apply even though our review is de novo. (See Reyes v. Kosha (1998)
65 Cal.App.4th 451, 466, fn. 6; Kim v. Sumitomo Bank of Calif. (1993)
17 Cal.App.4th 974, 979; Eisenberg, et al., Cal. Practice Guide: Civil Appeals
and Writs (The Rutter Group 2023) ¶ 8:17.2.) Accordingly, we will not
develop Molica’s arguments for him and deem his conclusory arguments
waived. Because Molica has not provided any basis for us to depart from the
trial court’s interpretation of Business and Professions Code section
17538(d)(1), we presume its interpretation is correct.
Even if Molica’s assertions were not waived, we have no qualms with
the trial court’s reasoning. As recited above, Business and Professions Code
section 17538(d)(1) states that “the vendor shall disclose to the buyer in
writing or by electronic means of communication, such as e-mail or an on-
screen notice, the vendor’s return and refund policy. ” Although it provides
that disclosure can be accomplished, by, for example, communication via an
“on-screen notice,” it does not define what that phrase means. Also, we have
not located any cases specifically interpreting the disclosure requirement in
Business and Professions Code section 17538, subdivision (d)(1). It was thus
reasonable for the trial court to find guidance in cases in analogous contexts,
namely cases addressing the validity of “browsewrap” agreements, which
involve websites that offer terms that are disclosed only through a hyperlink
and the user supposedly manifests assent to those terms simply by
continuing to use the website. (See Long v. Provide Commerce, Inc. (2016)
245 Cal.App.4th 855, 862–863 (Long); Nguyen, supra, 763 F.3d at p. 1176;
Berman v. Freedom Financial Network, LLC (9th Cir. 2022) 30 F.4th 849, 856
(Berman).) As the cases explain, “ ‘Because no affirmative action is required
by the website user to agree to the terms of a contract other than his or her
14
use of the website, the determination of the validity of the browsewrap
contract depends on whether the user has actual or constructive knowledge of
a website’s terms and conditions.’ [Citation.] More to the point here, absent
actual notice, ‘the validity of [a] browsewrap agreement turns on whether the
website puts a reasonably prudent user on inquiry notice of the terms of the
contract.’ ” (Long, at pp. 862−863, citing Nguyen, at p. 1177.)
In analyzing the existence of inquiry or constructive notice in this
context, courts have looked to whether “the conspicuousness of the hyperlinks
to [the contractual term(s) at issue] were sufficient to put a reasonably
prudent Internet customer on inquiry notice of the browsewrap agreement’s
existence and contents.” (Long, supra, 245 Cal.App.4th at p. 863, citing
Nguyen, supra, 763 F.3d at p. 1177; accord, Berman, supra, 30 F.4th at
p. 856.) In assessing conspicuousness, courts have considered various
criteria, such as the size, color, contrast, and location of any text notices, as
well as the obviousness of any hyperlinks. (B.D. v. Blizzard Entertainment,
Inc. (2022) 76 Cal.App.5th 931, 947 (B.D.); see, e.g., Meyer v. Uber
Technologies, Inc. (2d. Cir. 2017) 868 F.3d 66, 78 [blue color and underlining
of hyperlinks to Terms of Service containing arbitration provision, along with
the uncluttered design of the screen, rendered the terms reasonably
conspicuous under California law]; Dohrmann v. Intuit, Inc. (9th Cir. 2020)
823 Fed.Appx. 482, 484 [italicization of Terms of Use contributed to its
conspicuity].)
With the above legal principles in place, we turn now to Molica’s
challenges to the trial court’s finding he failed to establish a triable issue of
material fact whether TSI sufficiently disclosed its return policy.
Molica Failed to Establish a Triable Issue of Material Fact
As noted, TSI’s motion for summary judgment was supported by its
15
attorney’s declaration, which attached among other exhibits Molica’s
responses to discovery, the transcript of Molica’s deposition, and exhibits
attached to the deposition.
In response to TSI’s request for admissions, Molica admitted the
following: “there is a button for TSI’s ‘return’ policy from the webpage that
you ordered the Sealy Tempur-Pedic Memory Foam Pillows” and “there is a
button for TSI’s ‘return’ policy during the various webpages for the ordering
process from which YOU ordered the Sealy Tempur-Pedic Memory Foam
Pillows.”
The exhibits attached to Molica’s deposition included screenshots of
TSI’s website, which TSI’s counsel had taken the day before the deposition.
Counsel represented to Molica that the screenshots captured what TSI’s
online ordering process looked like on its website if a user were to
hypothetically purchase a pillow in the same price range as the one Molica
had purchased. Prior to showing Molica the exhibits, TSI’s counsel stated
that he would go over them with Molica and give him an opportunity to
confirm whether they were genuine depictions of TSI’s website. Molica did
not challenge the veracity of any of the screenshots, indeed, at one point
stating, “I believe you,” in response to counsel’s representations about what
some of the screenshots depicted.
One the exhibits is a page that shows when the user clicks on the
particular pillow chosen by counsel, which page includes a section that says,
“Why You’ll Love It” and sets forth various features of the pillow.
Underneath that, the page says, “More Details,” which then provides a
section off to the right side stating: “RETURN POLICY: [¶] Given their use
as personal items, pillows may not be returned. Read our return policy.”
“Read our return policy” is displayed as a blue, underlined hyperlink.
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Regarding this page, counsel for TSI questioned Molica as follows:
“Q. So here you have it, and it’s from the web page. You have ‘More
Details: Feel, Features, Warranty’ and ‘Return Policy: Given their use as
personal items, pillows may not be returned via our return policy (sic).’ Did I
read that portion correctly?
“A. I see that.
“Q. Did you look for anything as to—or see anything like this when you
were making that purchase?
“A. No.
“Q. Okay. Would you recall if you did?
“A. Gosh—well, I don’t recall.”
Another exhibit shows when an item is selected for purchase and
placed in the user’s “cart.” The page provides the “Order Summary,” which
lists the total amount of the purchase. This is followed by two boxes giving
the user the options to either “Checkout” or “Continue Shopping.”
Immediately below that the page states “Questions?,” along with TSI’s
contact information, which is then followed by a blue, underlined hyperlink
stating, “What is your return policy?”
When a user wishes to checkout, he or she is directed to a page that
again provides an order summary. Underneath that summary says, “What is
your return policy?” with “return policy” displayed as a blue, underlined
hyperlink. And underneath that, there are blank fields for shipping, billing,
and payment information for the user to fill out.
Another exhibit shows a page that is generated when a user clicks on a
hyperlink to TSI’s return policy. That page shows the full text of the policy.
As relevant here, under the heading “Pillows, Bed Linens, Bed Frames,
Mattress Toppers, Slippers, Travel & Home Products,” the page states:
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“Given the personal nature of these products, we accept returns only if the
item is damaged at delivery or if there is a product defect.”
At his deposition, Molica testified: “When I visited the Tempur Sealy
website, I go through the process, and there is—there’s a hyperlink to the
return policy that is more or less conspicuously placed . . . .” Additionally,
when counsel went through the above exhibits with Molica, Molica confirmed
there were hyperlinks directing the user to TSI’s return policy throughout the
online ordering process.
Relying on Molica’s deposition testimony, TSI asserted as one item of
its separate statement that “Molica admitted that the hyperlink to TSI’s
return policy was more or less conspicuously placed.” Molica did not dispute
this item in his own separate statement.
Another item in TSI’s separate statement provides: “Mr. Molica does
not dispute that the TSI website has [a] hyperlink to the return policy and
also a posted return policy regarding the subject pillows on one of its pages.
[¶] See Exhibit N, Deposition of Cody Molica taken on October 7, 2021 at
26:19-35:2, Pantuch Decl.” This is the only item that Molica disputed in his
separate statement. Relying on the same deposition testimony as that cited
by TSI, Molica asserted: “Disputed. There was no posted return policy
regarding the subject pillows on one of its pages when Mr. Molica made the
purchase.”
The trial court determined that TSI “introduced evidence that after a
user clicks on one of [its] pillow products, but before a user enters any
financial information, the web page conspicuously displays [TSI’s] return
policy, and [Molica] testified he did not recall whether or not he saw that
policy when he made his purchase.” Citing among other cases D’Amico v.
Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico) (disapproved on
18
other grounds in Woodland Hills Residents Assn., Inc. v. City Council (1979)
23 Cal.3d 917, 944), the court found Molica’s “testimony contradicts [his]
disputed material fact.” The court added, “In any case, the only evidence
[Molica] provides to support his disputed material fact is the very deposition
testimony that calls that fact into question.”
Challenging the order granting summary judgment, Molica makes
several procedural and evidentiary arguments throughout his opening brief.
For example, Molica argues that “[h]aving produced . . . evidence of
causation . . . , which was not rebuttable based on the moving party’s
evidence, the court erred in granting summary judgment as a matter of law.”
This argument apparently refers to TSI’s assertions on demurrer that Molica
failed to allege the elements of causation and damages of his CLRA and UCL
claims. The trial court disagreed with TSI, finding that Molica has
“adequately [alleged] that he suffered injury in fact and ha[d] lost money or
property as a result of the alleged unfair business practice,” before overruling
the demurrer as to the second and third causes of action. Molica relies on
this ruling to argue he had adequately produced evidence of causation, which
should have precluded summary judgment. This argument lacks merit.
Molica misconstrues the record and the law on demurrers in general.
In overruling the demurrer as to the second and third causes of action, the
trial court did not find, as Molica suggests, that he produced evidence
sufficient to prove causation or any element of his CLRA and UCL claims.
Molica did not even submit any “evidence” in connection with his opposition
to the demurrer. Further, the court declined to consider the extrinsic
evidence proffered by TSI, noting the general principles that (a) a demurrer
can be used only to challenge defects that appear on the face of the pleading
under attack or from matters outside the pleading that are judicially
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noticeable (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601), and
(b) facts pleaded are accepted as true. (Czajkowski v. Haskell & White, LLP
(2012) 208 Cal.App.4th 166, 173.) Thus, in ruling on the demurrer, the court
was simply not concerned with whether—and thus made no finding that—
Molica made an adequate evidentiary showing to prove his allegations.
Molica also argues that summary judgment should not have been
granted because the evidence that the trial court relied upon—screenshots of
TSI’s website—was addressed for the first time in TSI’s reply papers below.
In the first place, Molica did not raise this argument in the trial court and
thus has forfeited it on appeal. (See Avalos v. Perez (2011) 196 Cal.App.4th
773, 776 [“As a general rule, a claim of error will be deemed to have been
forfeited when a party fails to bring the error to the trial court’s attention by
timely motion or objection”].) The argument is also belied by the record.
Relevant excerpts from Molica’s deposition, along with the screenshots
presented to him, were included, and referred to in TSI’s moving papers.
Indeed, that evidence and arguments based on that evidence were central to
TSI’s motion.
Molica also mentions in passing that “[t]here was no foundation for this
evidence [(the screenshots)] the court cited in its order.” But Molica did not
object to the evidence on these grounds during his deposition. As mentioned
above, Molica was asked by TSI’s counsel to go over the screenshots to
confirm their authenticity, but Molica did not challenge the evidence in that
regard. In fact, at one point, he responded, “I believe you” to TSI’s counsel’s
descriptions of one of the exhibits as displaying a hyperlink to the return
policy. On top of that, Molica did not raise any objections in his papers
opposing the summary judgment motion. As such, Molica has waived the
ability to challenge the foundation of the evidence. (See Code Civ. Proc.,
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§ 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing [on a
motion for summary judgment] shall be deemed waived”]; Evid. Code, § 353,
subd. (a) [“A . . . finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous admission of
evidence unless. . . [t]here appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated as to
make clear the specific ground of the objection or motion”]; Leonardini v.
Shell Oil Co. (1989) 216 Cal.App.3d 547, 584 [“questions relating to the
admissibility of evidence will not be reviewed on appeal in the absence of a
specific and timely objection”].) Accordingly, we decline to consider Molica’s
newly raised evidentiary objections.
We turn now to Molica’s substantive arguments whether he raised a
triable issue of material fact concerning the disclosure of TSI’s return policy.
Molica argues “the applicable standard of law was not followed by the
trial court” and questions the court’s application of D’Amico. In D’Amico, our
Supreme court held: “ ‘[w]here . . . there is a clear and unequivocal admission
by the plaintiff, himself, in his deposition’ ” and the plaintiff contradicts that
admission in a subsequent declaration, “ ‘we are forced to conclude there is no
substantial evidence of the existence of a triable issue of fact.’ ” (D’Amico,
supra, 11 Cal.3d at p. 21.) “In a nutshell, the [D’Amico] rule bars a party
opposing summary judgment from filing a declaration that purports to
impeach his or her own prior sworn testimony.” (Scalf v. D.B. Log Homes,
Inc. (2005) 128 Cal.App.4th 1510, 1522.) As we explained in Turley v.
Familian Corp. (2017) 18 Cal.App.5th 969 (Turley), “the classic D’Amico
situation” occurs where “a party takes a position under oath in discovery; the
opponent moves for summary judgment; and in opposition the party files a
declaration that conflicts with its earlier testimony.” (Turley, at p. 981.) “In
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that situation, courts have held that the court may disregard the
declaration.” (Ibid.) Thus, D’Amico and its progeny only apply when a party
submits a declaration or affidavit that clearly contradicts prior statements
made in discovery. (See Scalf v. D. B. Log Homes, Inc., supra,
128 Cal.App.4th at p. 1521 [“Properly applied, D’Amico is limited to instances
where ‘credible [discovery] admissions . . . [are] contradicted only by self-
serving declarations of a party’ ” (italics omitted)]; accord, Turley, at pp. 981–
982.)
Here, the setting is not that in D’Amico and its progeny—discovery
followed by a declaration. (See Turley, supra, 18 Cal.App.5th at p. 982.)
Molica did not file a declaration in opposing summary judgment. He did not
submit his own evidence and instead relied on the evidence presented by TSI.
We therefore do not find the principle in D’Amico applies here. Despite this,
we conclude the trial court properly granted summary adjudication.
The trial court correctly found TSI met its initial burden of showing no
triable issue of material fact whether it had conspicuously displayed its
return policy on its website, in compliance with Business and Professions
Code section 17538(d). As the court interpreted the statute, a seller
“disclose[s]” its return policy if it posts on its website a hyperlink that is
sufficiently conspicuous to put a reasonably prudent internet consumer on
inquiry notice of the existence of the policy. (Cf. Long, supra,
245 Cal.App.4th at pp. 862–863; B.D., supra, 76 Cal.App.5th at p. 944;
Nguyen, supra, 763 F.3d at p. 1176; Berman, supra, 30 F.4th at p. 856.)
Here, Molica testified at his deposition as follows: “When I visited the
Tempur Sealy website, I go through the process, and . . . there’s a hyperlink
to the return policy that is more or less conspicuously placed . . . .” (Italics
added.) Molica did not dispute the item in TSI’s separate statement relating
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that testimony as follows: “Mr. Molica admitted that the hyperlink to TSI’s
return policy was more or less conspicuously placed.” Additionally, in
response to TSI’s request for admissions, Molica admitted “there is a button
for TSI’s ‘return’ policy from the webpage that you ordered the Sealy Tempur-
Pedic Memory Foam Pillows” and “there is a button for TSI’s ‘return’ policy
during the various webpages for the ordering process from which YOU
ordered the Sealy Tempur-Pedic Memory Foam Pillows.” Given Molica’s
concessions that a hyperlink to TSI’s return policy was conspicuously
displayed prior to accepting payment, TSI met its burden of demonstrating
the nonexistence of any triable issue of fact concerning a violation of Business
and Professions Code section 17538(d) and, consequently, the derivative
violations of the CLRA and the UCL.
The burden then shifted to Molica to prove a triable issue of fact as to
whether it conspicuously displayed its return policy. We agree with the trial
court that Molica did not meet this burden. As mentioned above, Molica’s
separate statement disputed only this one item in TSI’s separate statement:
“that the TSI website has [a] hyperlink to the return policy and also a posted
return policy regarding the subject pillows on one of its pages.” Molica
argues that the evidence he cited to in support of this assertion—his
deposition testimony—did not create a factual dispute. Specifically, he
contends: “[TSI] handed [Molica] a purported screenshot their counsel
allegedly had taken from his client’s website . . . . He showed the photograph
to [Molica] who acknowledged the disclosure language. He was asked if he
had seen this same language when he made his purchase. [Molica] said:
‘No.’ This established a triable issue of material fact as to whether [Molica]
had been exposed to an unlawful practice—the lack of disclosure that a ‘no
returns policy’ existed through an on-screen notice prior to consummation of
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sale.” Molica goes on, “What the trial court did was use this exchange of
testimony to make it seem as though [Molica] had backtracked on his
immediately prior answer. The question ‘would you recall if you did?’ was
clearly loaded. His answer, well gosh I don’t recall, did nothing to contradict
his prior answer that he had not seen the language he was being shown. . . .”
We are unpersuaded. Reading Molica’s testimony in context, while he
initially stated he did not see TSI’s return policy on its website at the time of
his purchase, his response to counsel’s immediate follow-up question clarifies
that he actually could not recall whether or not he did so. As a result,
Molica’s subsequent, contradictory assertion in his separate statement—that
“[t]here was no posted return policy regarding the subject pillows on one of its
pages when [he] made the purchase”—was speculative and not grounded in
personal knowledge or recollection. To that end, the court properly found
that Molica’s assertion was insufficient to create triable issue of fact.
But assuming arguendo Molica did raise a triable issue of fact whether
he saw the terms of TSI’s return policy, such circumstance would not
preclude summary judgment. Evidence of whether Molica saw the terms of
the return policy goes to the issue of whether he had actual knowledge of
those terms. However, as already discussed, a seller may satisfy the
disclosure requirement in Business and Professions Code section 17538(d)
even in the absence of actual notice—i.e., if it posts a hyperlink that is
sufficiently conspicuous to put an internet consumer on constructive notice of
its return policy. (Cf. Long, supra, 245 Cal.App.4th at pp. 862–863; B.D.,
supra, 76 Cal.App.5th at p. 944; Nguyen, supra, 763 F.3d at p. 1176; Berman,
supra, 30 F.4th at p. 856.) Here, Molica never disputed the fact that at the
time of his purchase he saw a hyperlink to TSI’s return policy on its website
and that the hyperlink was conspicuously placed.
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For all of the above reasons, Molica failed to establish a triable issue of
fact whether TSI complied with Business and Professions Code
section 17538(d). And because Molica’s CLRA cause of action was predicated
on a violation of Business and Professions Code section 17538(d), the trial
court properly granted summary adjudication as to that cause of action.
Likewise as to his UCL cause of action, which is derivative of his CLRA cause
of action.
DISPOSITION
The judgment is affirmed. TSI shall recover its costs on appeal.
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_________________________
Richman, J.
We concur:
_________________________
Stewart, P.J.
_________________________
Mayfield, J. *
Molica v. Tempur-Sealy International, Inc. (A167541)
*Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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