Filed 3/25/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
BRINAN WEEKS B323430
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 22STCV03531)
v.
INTERACTIVE LIFE FORMS, LLC,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David S. Cunningham III, Judge. Affirmed.
Sullivan Johnson and Daniel A. Johnson for Defendant and
Appellant.
Russell Law, L. David Russell; Qureshi Law and Omar G.
Qureshi for Plaintiff and Respondent.
_____________________
E-commerce websites typically contain terms of use, which
can include terms providing for arbitration in the event of
disputes. Sometimes those terms are prominently displayed and
require express acknowledgment; other times they can be
inconspicuous and never seen by a consumer. Prior cases hold
that so-called “browsewrap” provisions on a website, which deem
a consumer to have agreed to the website’s terms of use simply by
using the website and without taking any affirmative steps to
confirm knowledge and acceptance of the terms of use, generally
do not form an enforceable agreement to arbitrate under
California law.
In seeking to compel arbitration, the website owner in this
case asks us to depart from these prior cases and announce a new
rule permitting broader enforcement of browsewrap provisions, or
alternatively to find that the Federal Arbitration Act (FAA; 9
U.S.C. § 1 et seq.) preempts existing state law adverse to
browsewrap provisions. We find no grounds to deviate from prior
precedent and reject the novel FAA preemption claim.
FACTS AND PROCEEDINGS BELOW
Defendant Interactive Life Forms, LLC (Interactive)
operates an online business selling sex toys under the brand
name Fleshlight. Plaintiff Brinan Weeks filed a putative class-
action suit against Interactive alleging that the company falsely
advertised and misrepresented products sold on its website.
Weeks alleged that he purchased a device called a Stamina
Training Unit (STU) from the fleshlight.com website (the
website) on or around September 21, 2021, on the basis of
Interactive’s claims that the device would help him “perform
better,” “last longer,” and “improve [his] sexual stamina.”
Despite his frequent use of the product over several months,
2
Weeks alleged “there was no improvement in [his] sexual
performance or stamina.” Weeks asserted causes of action for
negligent misrepresentation, violation of the Consumer Legal
Remedies Act (Civ. Code, § 1750 et seq.), false advertising, breach
of express and implied warranty, and violation of the Unfair
Competition Law (Bus. & Prof. Code, § 17200 et seq.) on behalf of
himself and similarly situated plaintiffs.
Interactive responded by moving to compel arbitration.
Interactive alleged that “[e]very page of [its] website contains a
hyperlink to the ‘[t]erms of [u]se’ that govern use of the website
in the lower right quadrant of the webpage,” and that “[t]he
[t]erms of [u]se mandate mediation and arbitration of any
controversy, claim or dispute related in any way to access to or
use of [its] website.” The company claimed these terms of use
bound customers regardless of whether they clicked on this link,
and without the need for any affirmative assent to the terms of
use when using the site or buying products from it.
In support of its motion, Interactive included a declaration
from one of its employees attaching the website’s landing page as
of June 9, 2022. The employee attested that the same terms of
use had been in effect since January 2020, and that a link to
those terms of use was on every page of the website since at least
2012. The landing page exhibit showed, in the bottom right
corner, the words “terms of use” (capitalization omitted) in small
gray text against a black background. According to Interactive,
all pages on the website included similar links to the terms of
use.
Interactive attached as another exhibit a printout of the
terms of use. The document begins with the following statement:
“The terms of use set forth below . . . govern your use of the site
3
via the internet, the world wide web, mobile networks, or any
other communication methods now known or in the future
developed. In consideration for access to and/or use of the site,
you . . . agree to read the terms carefully before accessing the site,
you acknowledge that you have read and understood the terms,
and you agree to be bound by the terms. The terms are a legal
contract between you and [Interactive], and govern your access to
and/or use of the site.” (Capitalization omitted.) Later, the
document states, “By accessing or otherwise using the site you
agree to these terms [and] conditions.” (Capitalization omitted.)
Eleven pages later, in a section under the heading “Dispute
Resolution,” the document states, “You agree first to try to
resolve any controversy, claim, or dispute arising out of or
relating to the [t]erms or the access and/or use of the [s]ite, with
the help of a mutually agreed upon mediator in Austin, Travis
County, Texas. . . . [¶] If it proves impossible to arrive at a
mutually satisfactory solution through mediation, [y]ou agree to
submit the dispute to binding arbitration in Austin, Travis
County, Texas. You agree to arbitrate on an individual basis to
resolve disputes rather than jury or any other court proceedings,
or class actions of any kind. . . .” (Capitalization omitted.)
Interactive argued that Weeks impliedly agreed to the
terms of use, including the arbitration provision, by using the
website to purchase the STU “regardless of any assertion that he
did not read the” terms of use. In Interactive’s view, the fact that
Weeks filed suit rather than contacting Interactive first for a
refund or replacement showed that he was not an ordinary
consumer, and this “permits the inference that [Weeks] either
had actual knowledge of the arbitration agreement or
4
intentionally avoided reading the [terms of use] so that he could
claim ignorance of its arbitration provisions.”
In opposing the motion to compel arbitration, Weeks
declared that he visited the website from his smartphone, and
that he did not navigate to the very bottom of the page before
purchasing an STU. Weeks denied seeing a link to the terms of
use and explained that he “did not expect that [his] one-time
purchase of a product from the www.fleshlight.com website
required [him] to enter into the [t]erms of [u]se or any other
agreement.”
The trial court denied the motion to compel arbitration,
finding that Interactive failed to show the parties agreed to
arbitrate their dispute. The court first questioned whether
Interactive’s exhibits accurately reflected the contents of the
website at the time Weeks purchased the STU, as the employee
who purported to authenticate them was on leave around the
purchase. Even if the exhibits did accurately reflect the website’s
content at the time of Weeks’s purchase, the court found
Interactive had failed to show that Weeks assented to the terms
of use. The court stated that the link to the terms of use “is tiny,
illegible, and inconspicuous,” and found that Weeks “never saw it
or agreed to any provisions. The design and content of
[Interactive]’s website pages were insufficient to put a reasonable
user or [Weeks] on notice of the terms of use and the arbitration
agreement.”
STANDARD OF REVIEW
“We review an order denying a motion to compel
arbitration based on findings of fact for substantial evidence.
[Citations.] Where the facts are undisputed, we review the denial
of a motion to compel arbitration de novo. [Citations.] Likewise,
5
we independently review the order if the trial court’s denial rests
solely on a question of law. [Citations.]” (Villareal v. LAD-T,
LLC (2022) 84 Cal.App.5th 446, 456.)
DISCUSSION
A. There Was No Agreement to Arbitrate under
California Law
In denying the motion to compel arbitration, the trial court
relied on three prior decisions finding browsewrap or other
similar provisions unenforceable: Sellers v. JustAnswer LLC
(2021) 73 Cal.App.5th 444, 461 (Sellers), Long v. Provide
Commerce, Inc. (2016) 245 Cal.App.4th 855 (Long), and Nguyen v.
Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1175
(Nguyen). Interactive acknowledges that it cannot demonstrate
an agreement to arbitrate under the test set forth in these cases
and instead urges us to “revisit and reject” this precedent. 1
Before turning to the question of whether these cases remain
correctly decided, we first explain their reasoning.
“Arbitration under the [FAA] is a matter of consent, not
coercion” (Volt Information Sciences, Inc. v. Board of Trustees of
Leland Stanford Junior Univ. (1989) 489 U.S. 468, 479 [109 S.Ct.
1248, 103 L.Ed.2d 488]), and a court may not compel parties to
arbitrate a dispute “when they have not agreed to do so.” (Id. at
p. 478.) In determining whether an arbitration agreement exists,
1 Interactive also challenges the trial court’s ruling that
Interactive failed to introduce competent evidence as to the
website’s contents at the time Weeks made his purchase. We
need not address that issue because we agree with the trial
court’s finding there was no agreement to arbitrate even if the
website was as Interactive claimed.
6
we apply the same rules of contract formation as for any other
contract. (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th
233, 244.) In particular, “ ‘[m]utual manifestation of assent,
whether by written or spoken word or by conduct, is the
touchstone of contract.’ ” (Nguyen, supra, 763 F.3d at p. 1175,
quoting Specht v. Netscape Communications Corp. (2d Cir. 2002)
306 F.3d 17, 29 (Specht).)
On the internet, “a manifestation of assent may be inferred
from the consumer’s actions on the website—including, for
example, checking boxes and clicking buttons.” (Sellers, supra,
73 Cal.App.5th at p. 461.) Courts have generally enforced
agreements to arbitrate formed via “clickwrap,” 2 where “ ‘an
internet user accepts a website’s terms of use by clicking an “I
agree” or “I accept” button, with a link to the agreement readily
available.’ ” (Id. at p. 463.) Clickwrap agreements have been
held to manifest assent, even on consumers who did not read
them, because “the website [has] put[ ] the consumer on
constructive notice of the contractual terms.” (Id. at p. 461;
accord, Lemley, Terms of Use (2006) 91 Minn. L. Rev. 459, 466
[“Because the user has ‘signed’ the contract by clicking ‘I agree,’
every court to consider the issue has held clickwrap licenses
enforceable.” (Fns. omitted.)].)
2 Clickwrap and browsewrap agreements derive their name
by analogy from “ ‘shrink-wrap licenses’ ” in which companies
selling software at brick-and-mortar retailers sought to bind
customers to terms of use by placing notice of a license agreement
on the software’s packaging, though “ ‘the entire agreement
[could] only be viewed after buying the product and breaking
through the plastic shrink-wrap packaging.’ ” (Sellers, supra, 73
Cal.App.5th at p. 463.)
7
Neither party in this case denies that the terms of use on
Interactive’s website took the form of browsewrap, as Weeks was
not required to indicate his assent by clicking a checkbox or
taking any other affirmative action. Browsewrap provisions
differ from clickwrap because they operate under the theory that
the “ ‘user accepts a website’s terms of use merely by browsing
the site.’ ” (Sellers, supra, 73 Cal.App.5th at p. 463.) Because
browsewrap does not require the user to take any unambiguous
action to agree to the terms of use, “courts have reached
consistent conclusions when evaluating the enforceability of
[these] agreements . . . , generally finding . . . browsewrap
agreements to be unenforceable.” (Id. at p. 466.)
California law does not categorically state that a contract
can never be formed on the basis of browsewrap. Courts have
considered browsewrap under the ordinary standard for inquiry
notice, holding that “where . . . there is no evidence that the
website user had actual knowledge of the agreement, the validity
of the browsewrap agreement turns on whether the website puts
a reasonably prudent user on inquiry notice of the terms of the
contract.” (Nguyen, supra, 763 F.3d at p. 1177.) In practice,
however, the standard a website must meet to place a user on
inquiry notice of browsewrap is high. Nguyen set forth a bright
line rule that “where a website makes its terms of use available
via a conspicuous hyperlink on every page of the website but
otherwise provides no notice to users nor prompts them to take
any affirmative action to demonstrate assent, even close
proximity of the hyperlink to relevant buttons users must click
on—without more—is insufficient to give rise to constructive
notice.” (Id. at pp. 1178–1179.)
8
In Nguyen, the defendant’s website included a “ ‘[T]erms of
[U]se’ link . . . either directly below the relevant button a user
must click on to proceed in the checkout process or just a few
inches away. On some pages, the content of the webpage is
compact enough that a user can view the link without scrolling.
On the remaining pages, the hyperlink is close enough to the
‘Proceed with Checkout’ button that a user would have to bring
the link within his field of vision in order to complete his order.”
(Id. at p. 1178.) The court concluded that, “In light of the lack of
controlling authority on point, and in keeping with courts’
traditional reluctance to enforce browsewrap agreements against
individual consumers” (ibid., fn. omitted), the links were
insufficiently prominent to place the plaintiff on constructive
notice of the terms of use. “[T]he onus must be on website owners
to put users on notice of the terms to which they wish to bind
consumers. Given the breadth of the range of technological savvy
of online purchasers, consumers cannot be expected to ferret out
hyperlinks to terms and conditions to which they have no reason
to suspect they will be bound.” (Id. at p. 1179.)
The court in Long agreed with the Ninth Circuit’s analysis
in Nguyen, and endorsed its bright line rule “that, to establish
the enforceability of a browsewrap agreement, a textual notice
should be required to advise consumers that continued use of a
Web site will constitute the consumer’s agreement to be bound by
the Web site’s terms of use.” (Long, supra, 245 Cal.App.4th at
p. 867, citing Nguyen, supra, 763 F.3d at pp. 1178-1179.) The
conclusion that the defendant was not on inquiry notice of the
browsewrap agreement was straightforward in Long because the
hyperlinks to the terms of use were so difficult to find. (Long,
supra, 245 Cal.App.4th at p. 863.) The links were located far at
9
the bottom of the web page beneath multiple layers of footers and
were displayed in a green typeface that “could blend in with the
. . . site’s lime green background.” (Id. at p. 866.)
In Sellers, the court extended the reasoning of Long and
Nguyen to another form of “-wrap” agreement, in this case “sign-
in wrap.” In this arrangement, “ ‘a user signs up to use an
internet product or service, and the sign-up screen states that
acceptance of a separate agreement is required before the user
can access the service. While a link to the separate agreement is
provided, users are not required to indicate that they have read
the agreement’s terms before signing up.’ [Citations.]” (Sellers,
supra, 73 Cal.App.5th at p. 464.) The plaintiffs in Sellers clicked
on a button labeled “ ‘[s]tart my trial,’ ” with the expectation that
they would be able to submit a single question for an expert to
answer for a one-time fee of $5. (Id. at p. 480.) In small print
elsewhere on the screen appeared an inconspicuous link to a
terms of service document purporting to require consumers to
settle their disputes in arbitration. The court concluded that the
notice was not “sufficiently conspicuous to put [p]laintiffs on
inquiry notice that they would be bound by the terms of service
by proceeding with their trial.” 3 (Id. at p. 481.)
The web design in this case is similar to that in Long. The
printout of the website’s landing page in the appellate record
shows that the majority of the page is composed of
advertisements for Interactive’s products. Near the bottom of the
3 In cases involving websites with more conspicuous notice
of the terms of use, courts have enforced arbitration agreements
based on sign-in wrap. (See, e.g., B.D. v. Blizzard Entertainment,
Inc. (2022) 76 Cal.App.5th 931, 949–953.)
10
page is a section inviting the user to submit his or her email
address “to receive our latest news [and] promotions!” Beneath
that appears a menu in white text against a dark gray
background containing links to portions of the website, as well as
links to Interactive’s social media profiles and other links.
Finally, at the very bottom of the page, in a much smaller
typeface, in gray text against a black background, appears a link
labeled “terms of use,” sandwiched between similar links for the
“sitemap” and “privacy policy.” (Capitalization omitted.) Our
examination of the page leads us to the same observation the
court made in Long: it is “difficult . . . to find the [t]erms of [u]se
hyperlinks . . . even when one is looking for them.” (Long, supra,
245 Cal.App.4th at p. 866, fn. omitted.) And just as in Long, we
cannot imagine how this tiny, inconspicuous link would put a
reasonably prudent consumer on inquiry notice of the terms of
use.
In sum, substantial evidence supports the trial court’s
finding that “[t]he design and content of [Interactive]’s website
pages were insufficient to put a reasonable user or [Weeks] on
notice of the terms of use and the arbitration agreement.”
B. We Decline to Depart from Long and Nguyen
Interactive contends that we should reject the reasoning in
Long and Nguyen as to browsewrap on two grounds. First, it
argues that as Internet commerce has become more popular,
“users are becoming more familiar with the use of websites
generally and the terms and conditions governing use of websites
to make online purchases specifically,” with the result that
“reasonably prudent internet users do not now expect (nor should
they expect) that there are no rules governing their use of
websites” (bold and fn. omitted). Second, Interactive argues that
11
the Long and Nguyen approach “is facially overinclusive because
it expressly applies to entire classes of internet users,” including
users who are more sophisticated than average and either know
or should know of a website’s terms of use.
We find neither argument persuasive. Interactive’s claim
as to consumers’ expectations when visiting a website is pure
speculation, and “there is very little empirical evidence regarding
‘what the average internet user perceives to be the meaning of
the phrase “terms of use” or “terms and conditions,” or the degree
to which he or she is aware that each time a purchase is
conducted over the internet, a binding contract regarding more
than just the promise to pay may be being entered into.’ ”
(Sellers, supra, 73 Cal.App.5th at p. 475, quoting Berkson v. Gogo
LLC (E.D.N.Y. 2015) 97 F.Supp.3d 359, 380.) Indeed, one might
just as easily argue that as internet commerce has grown in
popularity, consumers have become more accustomed to
clickwrap agreements, and might assume that if they do not click
a checkbox indicating that they agree to a site’s terms of use, they
are not bound. We agree with the Sellers court that given the
uncertainty regarding consumer expectations “it is more
appropriate to focus on the providers, which have complete
control over the design of their websites and can choose from
myriad ways of presenting contractual terms to consumers
online,” including by using methods such as clickwrap, in which a
consumer’s assent to the terms of use is clearer. (Sellers, supra,
at pp. 475–476.)
Interactive’s second argument is similarly unavailing. The
bright line rule set forth in Long and Nguyen provides clear
guidance to website owners and is straightforward for courts to
apply. Interactive asserts that when considering a claim of
12
constructive notice, some consumers (such as Weeks) should
nevertheless have a greater duty of inquiry than others because
of their purported sophistication. We question the factual
premise of this argument as framed by Interactive here.
Interactive bases its claim of sophistication on Weeks having filed
suit rather than first contacting Interactive for a refund or
replacement as required by the terms of use, asserting that one
can infer from Weeks’s actions that he “had actual knowledge of
the arbitration agreement or intentionally avoided reading” its
terms. This appears to presume that Weeks did in fact see the
terms of use or was aware of their existence and deliberately
avoided reading them. If Weeks did not see the terms of use (as
he declared was the case), his failure to adhere to those terms by
filing suit instead of seeking a refund says little by itself about
his sophistication. We decline to infer that any consumer who
pursues a legal remedy in the first instance must necessarily be
so sophisticated we can presume they pored over a website
despite their sworn statements to the contrary. Interactive also
alleges that Weeks failed to comply with Commercial Code
section 2607, subdivision (3)(A), which requires a buyer “within a
reasonable time after he or she discovers or should have
discovered any breach, [to] notify the seller of breach or be barred
from any remedy.” Whether Weeks met the statutory
requirements for a breach of warranty claim is a matter for the
trial court to address in future proceedings, but we do not
understand how his alleged failure to comply with those
requirements is evidence of his sophistication.
But even if we posit Weeks was more sophisticated than
the average consumer, inquiry notice is defined in statute and in
case law based on the expectations of “a prudent person” (Civ.
13
Code, § 19) or “a reasonably prudent user” (Nguyen, supra, 763
F.3d at p. 1177; accord, Marina Pacifica Homeowners Assn. v.
Southern California Financial Corp. (2014) 232 Cal.App.4th 494,
511; California State Auto. Assn. Inter-Insurance Bureau v.
Barrett Garages, Inc. (1967) 257 Cal.App.2d 71, 79; Specht, supra,
306 F.3d at p. 30, fn. 14), not a hypothetical or actual supremely
savvy user. Interactive offers no explanation for why we should,
or even could, depart from such well-established law.
Interactive’s proposal also contradicts the law’s
longstanding skepticism of charging parties with knowledge they
do not actually possess. “The doctrine of constructive notice has
always been regarded as a harsh necessity; and the statutes
which create it have always been subjected to the most rigid
construction.” (Call v. Hastings (1853) 3 Cal. 179; accord,
MacGowan v. Jones (1904) 142 Cal. 593, 595 [“Constructive
notice is at the best but a poor substitute for actual notice, and is
permitted by the law only through necessity”].) We decline to
make it easier to establish contracts without proof that both
parties were aware of the terms, as that would undermine
“ ‘[m]utual manifestation of assent,’ ” as “ ‘the touchstone of
contract.’ ” (Nguyen, supra, 763 F.3d at p. 1175, quoting Specht,
supra, 306 F.3d at p. 29.)
Our rejection of Interactive’s argument does not put
website operators in an untenable position. Interactive had an
opportunity before the trial court to show that Weeks was
actually aware of the website’s terms of use. (See Nguyen, supra,
763 F.3d at p. 1176 [“courts have consistently enforced
browsewrap agreements where the user had actual notice of the
agreement”].) Alternatively, Interactive could have used
clickwrap, so that Weeks would have had to acknowledge that he
14
knew about and agreed to be bound by the terms of service at the
time he purchased the product. As the Second Circuit stated in
Specht, “Reasonably conspicuous notice of the existence of
contract terms and unambiguous manifestation of assent to those
terms by consumers are essential if electronic bargaining is to
have integrity and credibility.” (Specht, supra, 306 F.3d at p. 35.)
It is not necessary to undermine that principle, or depart from
settled precedent, to provide businesses greater protection from
technologically savvy users.
C. The FAA Does Not Preempt California Law on
Browsewrap Agreements
Interactive further claims that the FAA preempts
California law concerning browsewrap provisions. We now make
express what was implicit in prior cases: the FAA does no such
thing.
The FAA ordinarily defers to state law on questions of
contract formation, unless state law fails “to place arbitration
agreements ‘on equal footing with all other contracts.’ ” (Kindred
Nursing Centers Ltd. Partnership v. Clark (2017) 581 U.S. 246,
248 [137 S.Ct. 1421, 197 L.Ed.2d 806] (Kindred), quoting
DIRECTV, Inc. v. Imburgia (2015) 577 U.S. 47, 54 [136 S.Ct. 463,
193 L.Ed.2d 365].) To the extent a state law discriminates
against arbitration, however, either on its face or “by disfavoring
contracts that . . . have the defining features of arbitration
agreements,” state law is preempted. (Kindred, supra, at p. 251.)
California law regarding consumer Internet contract
formation does not single out arbitration agreements, but instead
applies equally to all contractual provisions. In addition, several
cases cited above—Nguyen, Long, Specht, and Sellers—have
applied California law regarding browsewrap formation to
15
motions to compel arbitration under the FAA without any
suggestion of possible preemption.
Nevertheless, Interactive argues that state law on
browsewrap agreements is preempted because the enforcement of
such agreements “is most likely to arise in the context of efforts
to compel arbitration.” Interactive claims it has been “unable to
locate any reported appellate decision applying California law
addressing the formation of internet browsewrap arbitration
agreements outside the arbitration context.” Thus, in
Interactive’s view, even if California law is facially neutral, it
“has a ‘disproportionate impact on arbitration.’ [Citation.]”
(Chamber of Commerce of the USA v. Bonta (9th Cir. 2023) 62
F.4th 473, 483.)
We are not persuaded. When deciding whether a law is
preempted by the FAA, the Supreme Court has not been guided
primarily by how often the law is applied in arbitration contexts
as opposed to others, but rather by whether the law “interferes
with fundamental attributes of arbitration” (AT&T Mobility LLC
v. Concepcion (2011) 563 U.S. 333, 344 [131 S.Ct. 1740, 179
L.Ed.2d 742] (Concepcion)) or “singles out arbitration agreements
for disfavored treatment.” (Kindred, supra, 581 U.S. at p. 248).
In Concepcion, the court addressed California law barring as
unconscionable waivers of class-wide proceedings in consumer
contracts. The law did not on its face discriminate against
arbitration, in that it simply provided all plaintiffs, whether in
litigation or arbitration, the right to demand that their cases be
decided on a class-wide basis. (Concepcion, supra, at p. 347.) The
court nevertheless held that the law was preempted because
class-wide proceedings would “sacrifice[ ] the principal advantage
of arbitration—its informality—and make[ ] the process slower,
16
more costly, and more likely to generate procedural morass than
final judgment.” (Id. at p. 348.)
Similarly, in Kindred, the court held that the FAA
preempted a Kentucky court’s decision barring agents granted a
power of attorney from entering into contracts waiving the
principal’s fundamental constitutional rights unless the
document setting forth the power of attorney explicitly granted
those rights. (Kindred, supra, 581 U.S. at pp. 252–253.) The
Kentucky rule appeared neutral, but its sole application was to
restrict the agent from “ ‘waiv[ing] his principal’s fundamental
constitutional rights to access the courts [and] to trial by jury[ ]’
[citation]”—in other words, from entering into arbitration
agreements on the principal’s behalf. (Id. at p. 248.) The court
was skeptical that the decision would apply to any other
fundamental rights, asking, “what other rights, really? No
Kentucky court, so far as we know, has ever before demanded
that a power of attorney explicitly confer authority to enter into
contracts implicating constitutional guarantees. Nor did the
opinion below indicate that such a grant would be needed for the
many routine contracts—executed day in and day out by legal
representatives—meeting that description. For example, the
Kentucky Constitution protects the ‘inherent and inalienable’
rights to ‘acquir[e] and protect[ ] property’ and to ‘freely
communicat[e] thoughts and opinions.’ [(]Ky. Const. § 1.[)] But
the state court nowhere cautioned that an attorney-in-fact would
now need a specific authorization to, say, sell her principal’s
furniture or commit her principal to a non-disclosure agreement.”
(Kindred, supra, at p. 253.) Because the Kentucky rule was, in
effect, “tailor-made to arbitration agreements—subjecting them,
17
by virtue of their defining trait, to uncommon barriers,” it was
preempted by the FAA. (Id. at p. 252.)
There is no basis for believing that California law
regarding browsewrap is limited in this way. Even if most
published cases on the subject have been in the context of
arbitration, we are aware of one federal case decided under
California law addressing browsewrap in a different context,
namely an alleged violation of a website’s terms of use by a
competitor scraping the website for data. (Pollstar v. Gigmania,
Ltd. (E.D.Cal. 2000) 170 F.Supp.2d 974; see also Register.com,
Inc. v. Verio, Inc. (2d Cir. 2004) 356 F.3d 393, 395 [similar issue
under New York law].) The issue of scraping is common enough
that Professor Mark A. Lemley discussed it in detail in a law
review article on Internet contract formation. (See Lemley,
Terms of Use, supra, 91 Minn. L. Rev. at pp. 472–477.) The terms
of use document from Interactive’s website occupies 15 pages of
the appellate record, but the section on arbitration takes up just
more than one full page. The document also includes sections
regarding scraping and commercial use of the content, the
intellectual property rights of user-submitted content, and
restrictions on attempting to circumvent the site’s security
features, among many other subjects, any of which could
potentially be the subject of litigation. There is no reason to
believe a court would address the issue of contract formation
differently in a case on a subject other than arbitration.
Interactive also argues that preemption is required because
California’s law on contract formation “undermines the strong
policy favoring arbitration.” In Interactive’s view, “the FAA’s
purpose is to give preference (instead of mere equality) to
arbitration provisions.” (Mortensen v. Bresnan Communications,
18
LLC (9th Cir. 2013) 722 F.3d 1151, 1160.) But the Supreme
Court has repeatedly rejected this idea, holding that the FAA
“requires courts to place arbitration agreements ‘on equal footing
with all other contracts.’ ” (Kindred, supra, 581 U.S. at p. 248,
quoting DIRECTV, Inc. v. Imburgia, supra, 577 U.S. at p. 54.)
Or, in other words, “[t]he policy [favoring arbitration] is to make
‘arbitration agreements as enforceable as other contracts, but not
more so.’ ” (Morgan v. Sundance, Inc. (2022) 596 U.S. 411, 418
[142 S.Ct. 1708, 212 L.Ed.2d 753].) Interactive argues that
courts must “resolve all doubts in favor of arbitration” (Sandquist
v. Lebo Automotive, Inc., supra, 1 Cal.5th at p. 247; accord,
Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S.
52, 62 & fn.8), but that rule applies to the interpretation of
“ ‘ambiguities as to the scope of the arbitration clause.’ ”
(Mastrobuono, supra, at p. 62.) Interactive cites no law
suggesting that it overrides the principle that, “The party seeking
arbitration bears the burden of proving the existence of an
arbitration agreement . . . .” (Pinnacle Museum Tower Assn. v.
Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223,
236.)
Finally, Interactive takes issue with Code of Civil
Procedure section 1290.2, the statute that establishes rules for
hearings on motions to compel arbitration, arguing that it
discriminates against arbitration by requiring a party seeking
arbitration to prove the existence of an arbitration agreement “in
a limited summary proceeding applicable . . . solely to requests to
compel arbitration . . . without the full range procedural and
evidentiary protections.” The California Supreme Court rejected
the argument that this statute is preempted in Rosenthal v.
Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 409,
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reasoning that “[Code of Civil Procedure s]ections 1281.2 and
1290.2 are neutral as between state and federal law claims for
enforcement of arbitration agreements. They display no hostility
to arbitration as an alternative to litigation; to the contrary, the
summary procedure provided, in which the existence and validity
of the arbitration agreement is decided by the court in the
manner of a motion, is designed to further the use of private
arbitration as a means of resolving disputes more quickly and
less expensively than through litigation.” We are bound by the
decision of our Supreme Court on the subject. (See Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The trial court’s order is affirmed. Weeks is awarded his
costs on appeal.
CERTIFIED FOR PUBLICATION
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
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