Metropolitan News-Enterprise


Monday, February 5, 2024


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Court of Appeal:

Defendant Didn’t Breach Consumer Laws by Declining Return of Pillows Sold Online


By a MetNews Staff Writer


The First District Court of Appeal on Friday affirmed a judgment in favor of an online vendor that declined to return $100 to a man who was dissatisfied with two pillows he purchased, rejecting his contention that the failure to post a conspicuous notice oN its website of its no-return policy with respect to “personal” items gives rise to liability under consumer protection statutes.

Cody Molica, of Santa Rosa, California, and Westfield, Massachusetts, sued Tempur-Sealy International, Inc. (“TSI”) under the TSO Unfair Competition Law and the Consumers Legal Remedies Act. San Francisco Superior Court Judge Ethan Schulman ordered entry of judgment in favor of the defendant after sustaining a demurrer to one cause of action without leave to amend and granting summary judgment on two other causes of action.

In his unpublished opinion, Justice James Richman of Div. Two expressed agreement with Schulman that Civil Code §1723 does not apply to online purchases. It says:

“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 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.”

Richman expressed agreement with TSI and Schulman that the code section applies only to ‘brick-and-mortar store fronts,” saying:

“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.’ ”

He wrote:

“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….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 list.’…Accordingly, the trial court correctly found section 1723 inapplicable to online purchases, and thus the purchase at issue in this case.”

On-Screen Notice

The jurist also rejected Molica’s contention that Business & Professions Code §17538(d) applies. It provides:

 “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....”

Richman said:

“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.”

Requirement Satisfied

Noting that TSI’s website provided a link to its return policy, he declared:

“[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….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.”

The case is Molica v. Tempur-Sealy International, A167541.

Last Oct. 19, the State Bar of California sent a cease and desist notice to Molica ordering him not to engage in the unauthorized practice of law in the state.

The Sonoma County Bar Association on Dec. 3, 2019, at a pro bono awards reception, recognized Molica,  then a student at Empire School of Law, for his work with the school’s disability law clinic.


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