Beland v. Expedia CA3, C086061

Background

Denae Beland (a California attorney) booked an airfare+hotel package on Expedia on Sept. 2, 2014 to Cabo San Lucas; the family arrived during a mandatory evacuation for a Category 4 hurricane and incurred shelter, hotel and rerouting expenses.
The Belands sued Expedia in El Dorado County alleging negligence, failure to warn, breach of contract/warranty, emotional distress, and a CLRA violation.
Expedia moved to stay/dismiss under Code Civ. Proc. § 418.10 relying on a forum selection clause in its web Terms of Use; Expedia submitted a Wang declaration with a screenshot of the final booking page and the Terms of Use.
The trial court overruled the Belands’ evidentiary objections, characterized the checkout page as a clickwrap (enforceable), found procedural but not substantive unconscionability, rejected claims that the Terms were illusory, and stayed the action pending suit in King County, Washington.
On appeal the Belands challenged evidentiary rulings, exclusion of late evidence, the clickwrap/browsewrap characterization and assent, forum vs venue characterization, unconscionability and illusoriness, CLRA dismissal, and the trial court’s rejection of their proposed settled statement; the Court of Appeal affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Admissibility of Wang declaration	Wang lacked personal knowledge/authentication of webpage/Terms	Wang (Expedia product manager) had personal knowledge and authenticated exhibits	No abuse of discretion; Wang’s declaration authenticated exhibits and was admissible
2) Exclusion of Belands’ late declarations & printout	Late filing excusable neglect; printout showed Wang’s screenshot inaccurate	Papers were untimely; court within discretion to refuse late evidence; no timely §473 motion	No abuse of discretion; late materials properly excluded; no excusable neglect shown
3) Clickwrap vs browsewrap / assent	The page required affirmative assent (click) and was not browsewrap	Expedia argued the checkout page gave sufficient notice and assent to Terms	Court viewed page as more like browsewrap but found, given facts (attorney-plaintiff, link present, notice language), sufficient inquiry notice and assent
4) Forum selection clause vs venue clause	Clause impermissibly restricts plaintiff’s forum/venue rights	Clause selects King County, WA (forum) and is presumptively valid	Clause is a mandatory forum selection clause and enforceable unless unreasonable or unfair
5) Unconscionability of Terms	Terms (forum clause etc.) procedurally & substantively unconscionable	Terms are adhesive but not substantively oppressive; Washington has logical connection	Trial court correctly found procedural unconscionability but no substantive unconscionability; clause enforceable
6) Unilateral modification / illusory contract	Expedia can unilaterally change Terms rendering them illusory	Modification clause applies prospectively; covenant of good faith limits bad-faith changes	Terms not illusory; provision construed to apply terms in force at time of transaction and limited by good faith doctrine
7) CLRA cause of action handling	Trial court improperly dismissed CLRA claim sua sponte	Trial court did not dismiss CLRA; CLRA tied to unconscionability showing which failed	Court did not dismiss CLRA; denial of unconscionability undermined the CLRA theory here
8) Striking appellant’s proposed settled statement	Court improperly struck appellant’s proposed statement as argumentative/incomplete	Appellant’s proposed statement was inaccurate/argumentative; trial judge best positioned to settle record	No abuse of discretion in striking it and adopting respondent’s version; no prejudice shown

Key Cases Cited

Paneno v. Centres for Academic Programmes Abroad Ltd., 118 Cal.App.4th 1447 (Cal. Ct. App. 2004) (evidence for §418.10 motion must be admissible)
Long v. Provide Commerce, Inc., 245 Cal.App.4th 855 (Cal. Ct. App. 2016) (distinguishes clickwrap and browsewrap agreements)
Berkson v. Gogo LLC, 97 F.Supp.3d 359 (E.D.N.Y. 2015) (survey of internet contract types and enforceability considerations)
Davis v. USA Nutra Labs, 303 F.Supp.3d 1183 (D.N.M. 2018) (authoritative authentication of web pages by corporate declarant)
America Online, Inc. v. Superior Court, 90 Cal.App.4th 1 (Cal. Ct. App. 2001) (forum selection clauses in consumer internet contracts and California public policy limits)
Net2Phone, Inc. v. Superior Court, 109 Cal.App.4th 583 (Cal. Ct. App. 2003) (favoring enforcement of forum selection clauses to facilitate commerce)
Smith, Valentino & Smith, Inc. v. Superior Court, 17 Cal.3d 491 (Cal. 1976) (modern trend enforces mandatory forum selection clauses unless unfair)
Sanchez v. Valencia Holding Co., LLC, 61 Cal.4th 899 (Cal. 2015) (unconscionability: procedural and substantive sliding scale)
Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC, 55 Cal.4th 223 (Cal. 2012) (procedural unconscionability: oppression and surprise factors)
Parada v. Superior Court, 176 Cal.App.4th 1554 (Cal. Ct. App. 2009) (adhesion contracts and available alternatives factor into procedural unconscionability)
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (U.S. 1991) (upholding forum clauses where a logical connection exists)
Serpa v. California Surety Investigations, Inc., 215 Cal.App.4th 695 (Cal. Ct. App. 2013) (substantive unconscionability assesses whether terms shock the conscience)