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Court of Appeal:
Arbitration Proviso in Electronic Form Wasn’t Conspicuous
Order Denying Motion to Compel Arbitration Is Affirmed; Plaintiff Was Justified in Supposing That She Was Agreeing to Terms Set Forth Above, Not Additional Terms to Which Hyperlink Led, Opinion Says
By a MetNews Staff Writer
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Depicted is the massage parlor in San Rafael where a woman identified as “Jane Doe” alleges she was sexually assaulted during a session. The First District Court of Appeal held yesterday that she is not bound by an arbitration agreement to which she purportedly assented in signing a form on an electronic tablet because that agreement was contained in a separate document that would have appeared had she clicked on a hyperlink, which, being hurried by staff, she did not do. |
A woman who signed her name on an electronic tablet below a line that read, “I agree and assent to the Terms of Use Agreement” did not actually consent under circumstances where she was justified in believing that the “use agreement” consisted of the multiple pages through which she had just scrolled, and not a separate contract that would have appeared on the screen had she clicked on a hyperlink, the Court of Appeal declared yesterday.
Next to the line was a check box on which she clicked. The words “Terms of Use Agreement” were in purple and were a hyperlink; she did not click on it.
Writing for the First District’s Div. Two, Justice Douglas P. Miller explained that Doe arrived for her Aug. 7, 2017 appointment at the “Massage Envy” franchise, in which she held a membership, and was told she needed to sign the form, doing so after she was hurried by staff so that the therapy could get underway.
That means that the woman, identified as “Jane Doe,” did not agree to a term in the “use agreement” requiring arbitration of any action against Massage Envy Franchising, LLC (“MEF”) an Arizona-based franchiser of massage parlors. The parlor in San Rafael at which she was allegedly sexually assaulted by a therapist is a franchisee of MEF.
The opinion affirms an order by San Mateo Superior Court Judge Marie S. Weiner denying a motion to compel arbitration.
Miller explained:
“[T]he statement that plaintiff was agreeing to terms of use appeared to refer to the terms that had already been presented to her over the course of several screens, and clicking the check-box appeared to be just an extra confirmation of her agreement before she signed the General Consent document. Having reviewed the General Consent, as instructed, plaintiff had no reason to look for any other agreement to review, and she was not on notice that clicking the check-box implicated any terms and conditions beyond those she had just reviewed. Particularly not any agreement with MEF, in view of the fact that the ‘General Consent’ is clear that the agreement is only between plaintiff and the San Rafael location.”
He elaborated:
“In arguing that the arbitration clause in the Terms and Conditions is enforceable, MEF relies on cases where courts applied California law and enforced clickwrap agreements. These cases are not persuasive because the contexts in which they arose are unlike the case before us….When she checked in for her massage, plaintiff already had an account with the San Rafael location, as the initial check-in screen confirmed, and she was not informed that she was signing up for a new service with MEF or setting up an account with MEF.”
The jurist pointed out that “the transaction in which plaintiff purportedly agreed to the MEF’s ‘Terms of Use Agreement’ is nothing like the typical transactions in which clickwrap agreements are used,” and so “far as she knew, she was not involved in a transaction of any sort with MEF.”
The case is Doe v. Massage Envy Franchising, A161688.
The plaintiff was identified in the San Mateo Superior Court as “Jane Doe #7 (D.G.).” She was one of several persons to sue over alleged misconduct at the San Rafael facility.
Her third amended complaint alleges:
“Massage Envy, the first and by far the largest chain of massage franchises in the country, boasts a billion-dollar business that falsely promises safety in the treatment room for massage and spa services at an affordable price while intentionally concealing the known dangers of their services to men and women at their locations nationwide. Massage Envy not only failed and continues to fail to provide basic safety to clients in a most vulnerable setting, but it systemically and intentionally conspired and concealed the rampant problem, danger and extensive reports of hundreds (and likely thousands) of massage therapists at Massage Envy franchise locations sexually assaulting customers throughout the country, including within the State of California.”
The pleading adds:
“In fact, sexual misconduct committed by massage therapists at MEF franchise locations is a national epidemic, with over several hundred known reports of sexual assaults by its therapists occurring throughout the country.”
Six Jane Does have appealed from a judgment against them in San Mateo Superior Court that followed the sustaining of demurrers by Weiner without leave to amend.
Message Envy operates at 20 locations in Los Angeles County. Among the facilities at which misconduct has been alleged in civil actions are those in the cities of Los Angeles, Beverly Hills, and Redondo Beach.
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