Herzog v. Super. Ct. ( 2024 )

Filed 5/16/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LARA HERZOG et al., D082847
Petitioners,
v. (San Diego County
Super. Ct. Nos.
THE SUPERIOR COURT OF SAN 37-2022-00049800-CU-PL-CTL,
DIEGO COUNTY, 37-2023-00012889-CU-PL-CTL,
37-2023-00014497-CU-PL-CTL,
Respondent; 37-2023-00014471-CU-PL-CTL,
37-2022-00047846-CU-PL-CTL)
DEXCOM, INC.,
Real Party in Interest.
*[And four other cases.]
ORIGINAL PROCEEDING on five consolidated petitions for writ of
mandate. Relief granted.
 Moore v. Superior Court (No. D082867); Tsakiris v. Superior Court (No.
D082868); Campbell Pierre v. Superior Court (No. D082869); Bottiglier v.
Superior Court (No. D082978).
Tosi Law, Timothy M. Clark and Min J. Koo (pro hac vice) for all
Petitioners.
No appearance for Respondent.
Gordon Reese Scully Mansukhani, Kevin W. Alexander, Renata Ortiz
Bloom; UB Greensfelder and Joshua A. Klarfeld (pro hac vice) for Real Party
in Interest.
INTRODUCTION
Henry J. Hebert, Traci Moore, Aliya Campbell Pierre, Tiffanie Tsakiris,
and Brenda Bottiglier are diabetic patients whose doctors prescribed the
Dexcom G6 Continuous Glucose Monitoring System (Dexcom G6) to manage
their diabetes. The Dexcom G6 allegedly malfunctioned and failed to alert
each of them that their blood glucose level was either too low or too high,
resulting in serious diabetic injuries; and in Hebert’s case, untimely death.
Five separate products liability actions were then filed against the
manufacturer, Dexcom, Inc. (Dexcom). In response to all five actions,
Dexcom moved to compel arbitration. It asserted that each injured party
entered a “clickwrap” agreement to arbitrate all disputes when they installed
a mobile medical application called the “G6 App” on their personal smart
devices to read their glucose levels and clicked the box next to, “I agree to
Terms of Use.” Terms of Use was a hyperlink to a separate webpage with
contractual terms, including an arbitration provision. Agreeing with
Dexcom, the trial court granted Dexcom’s motions in all five cases.
Plaintiffs⎯Moore, Pierre, Tsakiris, Bottiglier, and Hebert’s daughters,
Lara Herzog and Melanie Samora⎯each petitioned this court for writ of
mandate directing the trial court to vacate its orders compelling them to
arbitrate. We consolidated the cases and issued an order directing Dexcom to
show cause why the relief sought should not be granted. We now grant the
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petitions and direct the trial court to vacate its orders granting Dexcom’s
motions to compel arbitration and to enter new orders denying the motions.
On our de novo review, we conclude the trial court erred. Although a
clickwrap agreement⎯one in which 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⎯is generally enforceable, Dexcom’s G6 App
clickwrap agreement is not. We find that Dexcom undid whatever notice it
might have provided of the contractual terms by explicitly telling the user
that clicking the box constituted authorization for Dexcom to collect and store
the user’s sensitive, personal health information. For this reason, Dexcom
cannot meet its burden of demonstrating that the same click constituted
unambiguous acceptance of the Terms of Use, including the arbitration
provision. Consequently, arbitration agreements were not formed with any of
the plaintiffs.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Plaintiffs’ Lawsuits
Plaintiffs alleged Dexcom marketed and sold the Dexcom G6 “as a
potentially life-saving medical device capable of detecting and preventing
hyperglycemic and hypoglycemic events by alerting users of near-dangerous
blood glucose levels that may trigger such events.” The prescription medical
device replaces fingerstick blood glucose testing and scanning to manage
diabetes.
It consists of a wearable subcutaneous sensor patch that continuously
measures and monitors glucose levels in real time; a transmitter that
wirelessly sends glucose information to the user’s display device; and the
display device itself. It is designed to “literally ‘sound the alarm’ when a
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near-dangerous glucose level is detected” so the diabetic patient is provided
“at least a 20-minute advance warning and window to avoid a potential
hyperglycemic or hypoglycemic event.”
Hebert, Moore, Pierre, Tsakiris and Bottiglier each purchased and used
the Dexcom G6 as prescribed by their medical provider. But for each, the
Dexcom G6 allegedly malfunctioned: it failed to alert them of dangerous
glucose levels or stopped transmitting glucose readings, depriving them of the
“ ‘golden window’ of time to intervene and prevent a potentially life-
threatening medical condition.” As a result, Moore, Pierre, Tsakiris and
Bottiglier allegedly suffered serious diabetic injuries, some requiring
hospitalization. In Hebert’s case, the Dexcom G6’s malfunction allegedly
caused his untimely death.
Moore, Pierre, Tsakiris and Bottiglier sued Dexcom to recover damages
for their injuries, asserting various causes of actions for products liability (the
Moore, Pierre, Tsakiris, and Bottiglier cases). In addition to a survival cause
of action on behalf of their father’s estate, Herzog and Samora, Hebert’s
daughters, also asserted a wrongful death cause of action against Dexcom in
their individual capacity (the Herzog case).
II.
Dexcom’s Motions to Compel Arbitration
In all five cases, Dexcom responded to the operative complaint by
moving to compel arbitration and to stay the action pending completion of
arbitration. Dexcom’s motions were virtually identical in each case. Their
essential premise was that Hebert, Moore, Pierre, Tsakiris, and Bottiglier
had used the G6 App and had entered an arbitration agreement with Dexcom
during the process required to install the G6 App.
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As its sole evidence of the purported arbitration agreements, Dexcom
submitted a declaration from its senior manager of data privacy, Eric Lovell.
Lovell’s declaration was also identical in every case, with one exception we
later discuss.
Consistent with the plaintiffs’ complaints, Lovell explained the Dexcom
G6 consisted of three components: a sensor, a transmitter, and a display
device. According to a graphic in the Dexcom G6 “User Guide” (included in
plaintiffs’ complaints), the components look like this:
A diabetic person could use the Dexcom receiver as her display device,
without installing the G6 App. Or she could elect to use the G6 App to view
her glucose data on “a compatible personal mobile device, such as an iPhone.”
Lovell explained the process that is required to use the G6 App on a
personal mobile device. “Upon initial launch of the G6 App, the G6 App
displays a series of startup screens, known as the startup wizard” (which he
sometimes called the “setup wizard”), “to have the user configure the device.”
The user is required to log in to a Dexcom account to use the G6 App, and if
the user does not already have a Dexcom account, the G6 App will require
new users to create a Dexcom account. “The setup wizard will then display a
set of legal agreements from the web in a webview. The webview
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communicates to the G6 App when the user hits ‘Submit.’ ” According to
Lovell, “The user cannot complete the setup process and use the G6 App
without completing all of the aforementioned steps, including the acceptance
of Dexcom’s Terms of Use.”
Attached as Exhibit D to Lovell’s declaration was a “screenshot
depicting the setup wizard steps” he just explained. It looked like this:
In the initial screen on the left, under the words “Your Dexcom
Account,” a user is prompted to enter a “Username” and “Password,” and to
click on a “Login” button. As we previously mentioned, Lovell explained a
user would need to create a Dexcom account if one did not exist, in order to
proceed past this initial screen. He did not explain, nor does Exhibit D show,
how a user would create a Dexcom account, or whether that action would
occur on the same screen or a different screen.
Once the user has successfully logged into an existing Dexcom account,
or successfully created a new Dexcom account, the user would then advance
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to the screen on the right of Exhibit D. On this screen, titled “Legal,” the
following paragraph of text is displayed:1
“You understand and agree that your use of this website or any
DexCom Inc. mobile application or software platform for your
DexCom continuous glucose monitor is subject to the Terms of
Use, Privacy Policy and any other acknowledgements listed
below. By ticking the boxes below you understand that your
personal information, including your sensitive health information,
will be collected, used and shared consistently with the Privacy
Policy and Terms of Use. You further understand that personal
information and sensitive personal information will be stored and
processed by DexCom, Inc., and/or its affiliate, SweetSpot
Diabetes Care, Inc. in the United States, which may have
different data protection laws than the country in which you
reside.” (Italics added.)
Underneath this paragraph were two boxes: one next to the statement,
“I agree to Terms of Use” and another next to, “I agree to Privacy Policy.”
The phrases “Terms of Use” and “Privacy Policy,” which were written in
green, were hyperlinks that, if clicked, would take the user to separate
webpages. The user has to click on the boxes in order to place a check mark
in them, which would then allow the user to click on the green “Submit”
button that appeared below the boxes. The user, however, is not required to
actually view the hyperlinked Terms of Use (or the Privacy Policy) in order to
complete the setup wizard process to use the G6 App.
The Terms of Use hyperlink, if clicked, would take the user to another
webpage, titled “DEXCOM TERMS OF USE.” That webpage would display
22 pages of terms (if printed on standard 8.5 inch by 11 inch paper), including
an arbitration provision. Three versions of the Terms of Use were attached
1 This is presumably the “set of legal agreements” that is displayed “from
the web in a webview” during the setup wizard process Lovell explained.
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as exhibits to Lovell’s declaration. The first version was effective from
September 18, 2018 through February 10, 2019 (Exhibit A); the second was
effective from February 11, 2019 through February 24, 2021 (Exhibit B); and
the third, which was the current version, had gone into effect February 25,
2021 (Exhibit C). Dexcom presented all three versions in hard copy as paper
documents, not as screenshots of how they would appear on a personal mobile
device. All three versions had an identical arbitration provision,2 as well as a
California choice of law provision.
On the first page of Exhibit A, underneath the title “DEXCOM
TERMS OF USE,” was a lengthy recital that, among other things, defined
“[t]hese Terms of Use” as “this ‘Agreement.’ ” Near the bottom of the first
page was the following statement: “By using (including accessing) any
DexCom Product, DexCom Service or Soft-ware App or by clicking
2 The arbitration provision stated, in relevant part, “EXCEPT FOR
DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL
DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND DEXCOM,
WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD,
MISREPRESENTATION OR ANY OTHER LEGAL THEORY (EACH, A
‘DISPUTE’), WILL BE RESOLVED THROUGH FINAL AND BINDING
ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A
COURT BY A JUDGE OR JURY, AND YOU AGREE THAT DEXCOM AND
YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. . . . THE
ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN
ARBITRATION ASSOCIATION (‘AAA’). . . . THE ARBITRATOR WILL
CONDUCT HEARINGS, IF ANY, BY TELECONFERENCE OR
VIDEOCONFERENCE, RATHER THAN BY PERSONAL APPEARANCES,
UNLESS THE ARBITRATOR DETERMINES UPON REQUEST BY YOU
OR BY US THAT AN IN-PERSON HEARING IS APPROPRIATE. . . . THE
ARBITRATOR’S DECISION WILL FOLLOW THE TERMS OF THIS
AGREEMENT AND WILL BE FINAL AND BINDING.”
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‘accept’ to this Agreement, you are agreeing to this Agreement.”
Underneath this statement, at the bottom of the page, was an advisal stating,
“PLEASE NOTE THAT THIS AGREEMENT CONTAINS A MANDATORY
ARBITRATION OF DISPUTES PROVISION . . . .”3 The arbitration
provision itself appeared on the ninth and tenth pages of the document.
Dexcom did not present evidence of how far into the webpage a person
viewing the Terms of Use on a personal mobile device would have to scroll in
order to encounter the advisal or the arbitration provision.
The Terms of Use also purported to place significant limitations on the
liability of only Dexcom, its officers, directors, employees, agents, and
suppliers, including terms purporting to exempt them from “any
consequential, . . . special, punitive or exemplary damages,” or from liability
for “total damages for all claims arising from or relating to . . . Dexcom
products, Dexcom services, and/or software apps in an aggregate amount
greater than $500,” “except to the extent that such limitation is prohibited
under applicable law.” (Capitalization omitted.)
For our purposes, Exhibits B and C were identical to Exhibit A, except
for the following difference. In Exhibit B, the advisal that the agreement
contained “A MANDATORY ARBITRATION OF DISPUTES PROVISION”
appeared lower in the document; it started at the bottom of the first page and
carried over into the top of the second page. In Exhibit C, the advisal was
3 The advisal stated in full: “PLEASE NOTE THAT THIS
AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES
PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN
INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY
TRIALS OR CLASS ACTIONS, TO THE EXTENT PERMITTED BY
APPLICABLE LAW.”
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even further down and appeared entirely at the top of the document’s second
page.
Lovell averred that a user “cannot complete the setup process and use
the G6 App without completing all of the aforementioned steps” on the
account login screen and the “Legal” screen, “including the acceptance of
Dexcom’s Terms of Use.”
This, of course, begged the question whether Hebert, Moore, Pierre,
Tsakiris, or Bottiglier had used the G6 App to view their glucose levels on a
personal mobile device rather than the Dexcom receiver. It was on this point
that Lovell’s declaration varied. Lovell averred that Dexcom maintained
“certain data” for users who elect “to download the G6 App to their
compatible personal mobile device and complete the required G6 App setup
process,” which “can include data regarding [the] date on which a user
completed the G6 App setup wizard and accepted Dexcom’s Terms of Use.”
In the Moore, Tsakiris, and Bottiglier cases, Lovell identified the date
when a user with a Dexcom account registered to the name of the plaintiff
“completed the G6 App setup wizard and accepted Dexcom’s Terms of Use.”
For Moore, this date was May 19, 2020; for Tsakiris, it was March 17, 2017
and July 23, 2022; and for Bottiglier, it was December 17, 2019. In its
motions to compel arbitration, Dexcom argued that Moore, Tsakiris, and
Bottiglier had agreed to Dexcom’s Terms of Use, including the arbitration
provision, on these dates.
In Herzog and Pierre, Lovell did not identify a date when a user with a
Dexcom account registered to the name of Hebert or Pierre “completed the G6
App setup wizard and accepted Dexcom’s Terms of Use.” Instead, he simply
averred, “Given the way Dexcom’s G6 App setup operates, it is not possible
for . . . Hebert [or Pierre] to have used the Dexcom G6 App without having
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accepted Dexcom’s Terms of Use.” Dexcom asserted the Herzog plaintiffs and
Pierre admitted in their complaints that Hebert and Pierre had used the G6
App.4 It then argued Hebert and Pierre could not have used the G6 App
without completing the setup wizard process and agreeing to its Terms of
Use, including the arbitration provision.
The motions to compel arbitration in Herzog, Moore, Pierre, and
Tsakiris came on for hearing separately from Bottiglier. But in all five cases,
the trial court granted Dexcom’s motions and ordered the plaintiffs to
arbitrate their claims, with the exception of the Herzog plaintiffs’ wrongful
death claim, which it stayed. Plaintiffs then filed separate petitions for writ
of mandate challenging the trial court’s orders compelling arbitration. We
consolidated the cases and issued an order to show cause.5
4 As we explain later, we have independently considered the allegations
of the Herzog complaint relied on by Dexcom and we disagree there were any
admissions that Hebert used the G6 App. (See Discussion, Section IV, post.)
For reasons we explain in footnote 11, post, we have no occasion to consider
the sufficiency of the allegations of Pierre’s complaint to establish G6 App
use.
5 Although our issuance of the order to show cause reflected our
determination that plaintiffs satisfied the prerequisites for writ review
(Marron v. Superior Court (Hassanein) (2003) 108 Cal.App.4th 1049, 1056),
Dexcom argues in its return that plaintiffs failed to establish writ review is
appropriate. We thus briefly explain our reasoning.
Writ review of orders compelling arbitration may be obtained, although
“only in ‘unusual circumstances’ or in ‘exceptional situations.’ ” (Zembsch v.
Superior Court (2006) 146 Cal.App.4th 153, 160.) Unusual circumstances
justifying writ review of orders compelling arbitration have been held to exist
“if the matters ordered arbitrated fall clearly outside the scope of the
arbitration agreement, or if the arbitration would appear to be unduly time
consuming or expensive.” (Atlas Plastering, Inc. v. Superior Court (1977) 72
Cal.App.3d 63, 68.) Such circumstances exist here. As we shall explain, we
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DISCUSSION
I.
Principles of Law
A. Contract Formation Over the Internet
“ ‘Under both federal and state law, the threshold question presented
by a petition to compel arbitration is whether there is an agreement to
arbitrate.’ ” (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 460–461
(Sellers).) We apply California law to determine the answer to this threshold
question here. (See id. at p. 462, fn. 4 [“courts generally apply state law
principles governing the formation of contracts when deciding whether an
agreement to arbitrate exists in the first instance”].)
Under basic principles of California contract law, “[m]utual assent, or
consent, of the parties ‘is essential to the existence of a contract’ (Civ. Code,
§ 1550; see also Civ. Code, § 1565), and ‘[c]onsent is not mutual, unless the
parties all agree upon the same thing in the same sense’ (Civ. Code, § 1580).”
(Sellers, supra, 73 Cal.App.5th at p. 460.) “Mutual assent is determined
conclude that Dexcom failed to establish the formation of enforceable
arbitration agreements. Thus, withholding review until judgments are
entered in each of the plaintiffs’ cases would require the parties to devote
significant time and resources to unnecessary arbitration proceedings.
Plaintiffs’ counsel has filed a total of 42 cases against Dexcom in which
Dexcom either has moved or is expected to move to compel arbitration.
Immediate review thus stands to provide guidance to the trial court, as well
as other courts tasked with deciding Dexcom’s motions. Under these
circumstances, writ review is proper. (See e.g. Zembsch, at p. 161 [writ
review appropriate where meritorious challenges to existence and
enforceability of arbitration agreement were raised]; Phillips v. Sprint PCS
(2012) 209 Cal.App.4th 758, 767‒768 [granting writ review of order
compelling arbitration where trial court’s rationale raised a legal issue with
“pressing . . . relevance to other pending consumer class actions”].)
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under an objective standard applied to the outward manifestations or
expressions of the parties, i.e., the reasonable meaning of their words and
acts, and not their unexpressed intentions or understandings. The parties’
outward manifestations must show that the parties all agreed ‘upon the same
thing in the same sense. If there is no evidence establishing a manifestation
of assent to the ‘same thing’ by both parties, then there is no mutual consent
to contract and no contract formation.” (Ibid. [cleaned up].) Further,
“California law is clear—an offeree, regardless of apparent manifestation of
his consent, is not bound by inconspicuous contractual provisions of which he
[or she] was unaware, contained in a document whose contractual nature is
not obvious.” (Id. at p. 461 [cleaned up]; accord Doe v. Massage Envy
Franchising, LLC (2022) 87 Cal.App.5th 23, 30–31 (Massage Envy).)
This “principle of knowing consent applies with particular force to
provisions for arbitration, including arbitration provisions contained in
contracts purportedly formed over the internet.” (Sellers, supra, 73
Cal.App.5th at p. 460 [cleaned up].) In the context of an internet transaction,
“in the absence of actual notice, a manifestation of assent may be inferred
from the consumer’s actions on the website—including, for example, checking
boxes and clicking buttons—but any such action must indicate the parties’
assent to the same thing, which occurs only when the website puts the
consumer on constructive notice of the contractual terms. Thus, in order to
establish mutual assent for the valid formation of an internet contract, a
provider must first establish the contractual terms were presented to the
consumer in a manner that made it apparent the consumer was assenting to
those very terms when checking a box or clicking on a button.” (Id. at p. 461,
second italics added [cleaned up].) And “the full context of any transaction is
critical to determining whether any particular notice is sufficient to put a
13
consumer on inquiry notice of contractual terms contained on a separate,
hyperlinked page.” (Id. at p. 453.)
B. Standard of Review
There is no uniform standard of review for evaluating a trial court’s
order granting or denying a motion to compel arbitration. (See Avery v.
Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 60 (Avery).)
If the court’s order is based on a decision of fact, we adopt a substantial
evidence standard. (Ibid.) If the court’s ruling rests solely on a decision of
law or on undisputed facts, we apply a de novo standard of review. (Ibid.)
And where the court’s ruling is “based on the threshold issue of the existence
of a contract, and the evidence of the alleged contract formation consists
primarily of undisputed screenshots of the website at issue, our review is de
novo.” (Sellers, supra, 73 Cal.App.5th at p. 462; accord B.D. v. Blizzard
Entertainment, Inc. (2022) 76 Cal.App.5th 931, 949 (Blizzard).)
Dexcom, as the party seeking arbitration, bears the burden of proving
the existence of an arbitration agreement. (See Pinnacle Museum Tower
Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236;
Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413
[“Because the existence of the agreement is a statutory prerequisite to
granting the petition, the petitioner bears the burden of proving its existence
by a preponderance of the evidence.”].) Here, Dexcom relied solely on the
undisputed screenshots of the G6 App setup process, and Lovell’s declaration
explaining that process, to establish the formation of binding arbitration
agreements.6 Our review of the trial court’s resolution of the contract
6 In Herzog, Moore, Pierre, and Tsakiris, the plaintiffs did not submit
evidence in opposition to Dexcom’s motions to compel arbitration. In
Bottiglier, the plaintiff did file an opposing declaration, but it addressed
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formation question is therefore independent.7 (Sellers, supra, 73 Cal.App.5th
at p. 462 [“where there is no dispute as to the material facts, ‘the existence of
a contract is a question [of law] for the court to decide’ ”]; accord Pinnacle, at
p. 236 [where “the evidence is not in conflict” the trial court’s arbitration
ruling is reviewed de novo].)
II.
Dexcom Failed To Establish the Formation of an Agreement To Arbitrate
Plaintiffs dispute there is a voluntary or mutual agreement to
arbitrate, including because the arbitration provision was insufficiently
conspicuous and fell outside their reasonable expectations as patients
prescribed the Dexcom G6. Dexcom responds that plaintiffs entered valid
arbitration agreements when they launched the G6 App, “clicked the
acknowledgement and assented to the [Terms of Use] Agreement”—in other
topics that differed from those covered by Lovell’s declaration. To the extent
she averred she did not read the Terms of Use, we agree with Dexcom this is
not a defense to contract formation. Because mutual assent is determined
under an objective standard, “[i]f an offeree objectively manifests assent to an
agreement, the offeree cannot avoid a specific provision of that agreement on
the ground the offeree did not actually read it.” (Blizzard, supra, 76
Cal.App.5th at p. 943.) We do not rely on Bottiglier’s other averments,
including her assertions that she launched the G6 App only after she had
trouble with her Dexcom receiver and downloaded the G6 App after her
medical provider suggested it as an alternative. We find it unnecessary to
consider these facts because we conclude Dexcom’s moving evidence fell short
of establishing agreements to arbitrate.
7 To the extent Dexcom contends our review of the trial court’s
determination of the existence of arbitration agreements is governed by the
substantial evidence standard of review, we disagree. As noted, the evidence
was not conflicting, and the court was not required to resolve factual disputes
in deciding that Dexcom succeeded in establishing the existence of
agreements to arbitrate.
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words, when they clicked the checkbox on the “Legal” screen next to the
statement “I agree to Terms of Use.” It argues this is a “classic ‘clickwrap’
agreement, valid and routinely enforced under California law.” As we shall
explain, we conclude Dexcom failed to establish that plaintiffs formed binding
arbitration agreements when they clicked this checkbox.8
Because Dexcom did not present evidence that plaintiffs had actual
notice of the Terms of Use, it was required to establish contract formation on
a constructive or inquiry notice theory. (Sellers, supra, 73 Cal.App.5th at
p. 453; see Civ. Code, § 19 [defining constructive notice].) To succeed on this
theory, Dexcom needed to show that it provided prospective G6 App users
with reasonably conspicuous notice of the existence of the terms to which
they were to be bound. Importantly here, it was required to show that the
content of its “Legal” screen supports the inference that the user’s action on
that screen—here, clicking the checkbox—constituted an unambiguous
manifestation of assent to those terms, including the arbitration provision.
(See Sellers, at p. 469 [“ ‘[r]easonably 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’ ”]; Berman v. Freedom Financial Network, LLC (9th Cir. 2022) 30
F.4th 849, 856 (Berman) [“an enforceable contract will be found based on an
inquiry notice theory only if: (1) the website provides reasonably conspicuous
8 Because the parties’ briefs failed to fully address all relevant aspects of
the G6 App launch transaction, in particular the content of the text on the
“Legal” screen, we directed them to submit supplemental briefs on this topic.
(Gov. Code, § 68081.) We have considered the arguments set forth in their
supplemental briefs and discuss them to the extent relevant. Further,
Dexcom has filed letters citing new authorities which we have also reviewed
and considered.
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notice of the terms to which the consumer will be bound; and (2) the
consumer takes some action . . . that unambiguously manifests his or her
assent to those terms”]; Long v. Provide Commerce, Inc. (2016) 245
Cal.App.4th 855, 863 (Long) [absent actual notice, validity of internet
agreement turns on whether the provider’s website puts reasonably prudent
users on inquiry notice of the contractual terms].)
In arguing that its G6 App setup process resulted in the formation of
binding arbitration agreements with prospective app users, Dexcom relies
heavily on the position that its Terms of Use were presented in clickwrap
format, and clickwrap agreements “are regularly enforced.” We agree
Dexcom’s Terms of Use are properly categorized as a clickwrap, a form of
internet agreement generally regarded as enforceable because it requires the
user to manifest assent to a website’s terms of use “by clicking an I agree or I
accept button, with a link to the agreement readily available.” (Sellers,
supra, 73 Cal.App.5th at p. 463 [cleaned up].)
But categorizing the purported agreement as a clickwrap does not
resolve the formation question before us. As this court has explained, “it is
the degree of notice provided, not the label, that is determinative.” (Blizzard,
supra, 76 Cal.App.5th at p. 950; accord Sellers, supra, 73 Cal.App.5th at
p. 466 [“the classification of web based contracts alone does not resolve the
issue of legally sufficient notice inquiry” (cleaned up)].) And as a recent
decision of the Second District Court of Appeal illustrates, the context of the
transaction and the content of the screen on which a clickwrap is presented
can undermine the inference the consumer had notice of the terms to which
they were assenting when they clicked the associated checkbox. (Massage
Envy, supra, 87 Cal.App.5th at pp. 31–34 [rejecting purported clickwrap
agreement where the context of the transaction and the content of the screen
17
on which the clickwrap was presented made it appear the plaintiff was
agreeing to a different set of terms pertaining to a different party]; see also
Sgouros v. TransUnion Corp. (7th Cir. 2016) 817 F.3d 1029, 1034–1036
(Sgouros) [rejecting purported arbitration agreement where website text told
customers clicking on the box “served a particular purpose unrelated to” the
agreement].) That is the case here.
A. No Reasonably Conspicuous Notice of the Terms
Prospective G6 App users who encountered the clickwrap on Dexcom’s
“Legal” screen were engaged in the launch of the G6 App. Use of the app was
optional; it was not required in order to make the Dexcom G6 device function.
It simply made it possible for the Dexcom G6 user to view their glucose data
on a personal mobile device.
Upon arriving at the “Legal” screen of the setup process, users were
met with the following three-sentence paragraph: “You understand and
agree that your use of this website or any DexCom Inc. mobile application or
software platform for your DexCom continuous glucose monitor is subject to
the Terms of Use, Privacy Policy and any other acknowledgements listed
below. By ticking the boxes below you understand that your personal
information, including your sensitive health information, will be collected,
used and shared consistently with the Privacy Policy and Terms of Use. You
further understand that personal information and sensitive personal
information will be stored and processed by DexCom, Inc., and/or its affiliate,
SweetSpot Diabetes Care, Inc. in the United States, which may have different
data protection laws than the country in which you reside.” (Italics added.)
The clickwrap—the checkbox next to the hyperlinked Terms of Use
webpage—was directly underneath this paragraph.
18
We cannot conclude that a reasonably prudent user in the position of
the plaintiffs would understand after reading this text that the Terms of Use
were intended to govern any matters other than the scope of the user’s waiver
of privacy rights and the management of the user’s personal information.
The first sentence on the screen did state the user was agreeing to the
“Terms of Use . . . listed below.” However, because the phrase “Terms of Use”
appeared in the second sentence on the screen as well as in the hyperlink at
the bottom of the screen, both of which were “below” the first sentence, this
was at best only an uncertain reference to the full scope of terms in the
hyperlinked webpage. Moreover, this sentence did not advise the user that
use of the Dexcom G6 device would also be subject to the Terms of Use, nor
would the user have any reason to suspect that it would, given that the
process at hand involved the G6 App and the user had already completed the
transactions necessary to acquire the Dexcom G6 device.
Further, the second and third sentences on the screen (italicized in the
paragraph above) explicitly specified the understandings the user was
manifesting by “ticking the box[ ]” next to “I agree to Terms of Use.” Because
these sentences expressly defined what it meant to “agree to Terms of Use,”
they limited the scope of the agreement the user was entering by clicking the
checkbox associated with the clickwrap at the bottom of the screen. The
second sentence told the user that by clicking the checkbox, they were
communicating their understanding that their personal information would be
collected, used and shared “consistently with” the Terms of Use. The third
sentence reinforced the message that the proposed agreement pertained only
to privacy issues by telling users they “further” understood Dexcom and/or its
affiliate would store and process their personal information in the United
19
States, “which may have different data protection laws than the country in
which you reside.”
A user would have no reason to believe, given the context of the
transaction and the content of the text on the “Legal” screen, that by clicking
the checkbox next to “I agree to Terms of Use” they were entering an
agreement that concerned any matters other than the scope of the user’s
privacy waiver and management of the user’s personal information. Because
privacy rights and the collection, use, and sharing of personal information
were the very matters implicated by the launch of the G6 App—an app that
facilitated the transmission of the user’s glucose data to a personal mobile
device—the user would have no reason to suspect the agreement, as proposed
on the screen, was unduly limited.9
“If the party who receives information of circumstances suggesting an
inquiry for the principal fact, makes that inquiry with due diligence, the
result must be either that he will ascertain the fact, or that he will be
prevented from doing so by causes for which he is not to blame, and from
which he ought not to suffer.” (Code commrs. note, Deering’s Ann. Civ. Code
9 Dexcom contends plaintiffs, relying on Wheeler v. St. Joseph Hospital
(1976) 63 Cal.App.3d 345, seek to create a “ ‘medical device’ exception” to the
enforceability of arbitration clauses. Wheeler held that an arbitration
provision contained in a hospital’s admission form was unenforceable because
it fell outside the reasonable expectations of a patient admitted to the
hospital for the purpose of undergoing diagnostic studies. (Wheeler, at
pp. 349–350.) Plaintiffs argue that, like the patient in Wheeler, their status
as diabetic patients prescribed a life-saving medical device must be taken
into account in assessing whether the arbitration provision was within their
reasonable expectations. We find it unnecessary to address any of these
contentions. We do not rely on Wheeler or plaintiffs’ status as diabetic
patients in ruling that Dexcom’s clickwrap failed to create binding arbitration
agreements.
20
(2005 ed.) foll. § 19, p. 35.) Here, Dexcom told users the agreement they were
entering pertained only to the collection, use, sharing, storing, and processing
of their personal information, including sensitive personal information and
sensitive health information. By doing so, it limited the scope of users’
inquiry notice to those subject matters. A user unconcerned about others’
possession of their personal information—as was likely to be the case, given
the nature of the app—would have no reason to inquire further. Such a
person cannot be said to have risked the possibility that, by entering the
agreement, they were also consenting to binding arbitration of personal
injury claims arising from injuries caused by Dexcom’s products.
As numerous courts have held, “ ‘the onus must be on website owners
to put users on notice of the terms to which they wish to bind consumers.’ ”
(Long, supra, 245 Cal.App.4th at p. 867, citing Nguyen v. Barnes & Noble Inc.
(9th Cir. 2014) 763 F.3d 1171, 1179 (Nguyen); Sellers, supra, 73 Cal.App.5th
at p. 476; Weeks v. Interactive Life Forms, LLC (2024) 100 Cal.App.5th 1077,
1086 (Weeks).) Here, Dexcom elected to tell users that by “ticking the box[ ]
below” they were conveying a finite set of understandings related to the
management of their personal information. It could have, but did not, tell
users the same click would also commit the user to binding arbitration in the
event they were injured by Dexcom’s products. By expressly tying the user’s
action to a limited set of consequences, it implicitly excluded the possibility
that same action would have other consequences. (See Stephenson v. Drever
(1997) 16 Cal.4th 1167, 1175 [“The fact that the contract expressly so
provides tends to negate any inference that the parties also intended another
consequence to flow from the same event. Expressio unius est exclusio
alterius.”]; see Nguyen, at p. 1175 [while internet commerce “ ‘has exposed
courts to many new situations, it has not fundamentally changed the
21
principles of contract’ ”].) For these reasons, we cannot conclude that Dexcom
provided users with information sufficient to put them on inquiry notice of
the subject arbitration provision. Nor can we conclude that the Terms of
Use—including the arbitration provision—were presented to users “ ‘in a
manner that made it apparent’ ” they were “ ‘assenting to those very terms
when . . . clicking on a [checkbox]’ ” next to the statement, “I agree to Terms
of Use.” (See Massage Envy, supra, 87 Cal.App.5th at p. 32; Sellers, supra, 73
Cal.App.5th at p. 461.)
The context in which Dexcom’s clickwrap was presented mirrors certain
contextual features that led the Massage Envy court to reject a purported
clickwrap agreement. There, the plaintiff had an existing membership with
an independently owned massage franchise location. (Massage Envy, supra,
87 Cal.App.5th at pp. 26–27.) The franchisor claimed the plaintiff agreed to a
hyperlinked “Terms of Use Agreement” containing an arbitration clause
when she completed an electronic general consent form while checking in for
a massage appointment. (Id. at pp. 27–29.) The general consent screen had
a boldface heading, “Assumption of Risk, Release, Waiver of Liability, and
Indemnification,” followed by text that related to these topics. The clickwrap
with the hyperlink was at the bottom of the form, underneath this text. (Id.
at pp. 28–29.)
In concluding there was no agreement to arbitrate, the Massage Envy
court observed that because the plaintiff had a preexisting contractual
relationship with the independent massage location, she had no reason to
believe the check-in process for her massage involved the franchisor.
(Massage Envy, supra, 87 Cal.App.5th at p. 31.) It also noted that the context
in which the terms of use agreement was presented made it appear that it
involved nothing other than the “ ‘assumption of risk, release, waiver of
22
liability, and indemnification.’ ” (Id. at p. 32.) The court reasoned, “[T]he
entire check-in experience made it appear that by clicking that button and
signing her name plaintiff was agreeing to the General Consent . . . . In these
circumstances, she did not enter any agreement [to arbitrate] with [the
franchisor].” (Ibid.)
Similarly, here, the G6 App launch was a transaction separate from
the transactions the user had already completed in order to acquire the
Dexcom G6. Users would have no reason to anticipate encountering during
the app launch new contractual terms governing their use of the Dexcom G6,
a device they had already acquired with their medical provider’s prescription.
Similar to Massage Envy, the context in which Dexcom’s Terms of Use were
presented made it appear they governed nothing other than privacy and
management of the user’s personal information. We reach the same
conclusion as the court in Massage Envy: in these circumstances, the user
did not enter any agreement to arbitrate.
The notice problem created by the text on Dexcom’s “Legal” screen also
closely resembles the problem confronted by the court in Sgouros, supra, 817
F.3d 1029. In Sgouros, the plaintiff purchased a credit score package using
TransUnion’s website. One of the webpages the plaintiff was required to
proceed through in order to make his purchase contained a service agreement
with an arbitration provision in an inset scroll box. The immediately visible
text in the scroll box had the title “Service Agreement” and said that it
“ ‘contains the terms and conditions upon which you . . . may access and
use[.]’ ” (Id. at p. 1032.) At the bottom of the screen was a button that said,
“I Accept & Continue to Step 3.” (Id. at pp. 1032, 1033.) Underneath the
scroll box and above the button was the following text: “You understand that
by clicking on the ‘I Accept & Continue to Step 3’ button below, you are
23
providing ‘written instructions’ to TransUnion Interactive, Inc. authorizing
TransUnion Interactive, Inc. to obtain information from your personal credit
profile from Experian, Equifax and/or TransUnion. You authorize
TransUnion Interactive, Inc. to obtain such information solely to confirm
your identity and display your credit data to you.” (Ibid.)
The Seventh Circuit, applying Illinois law—which, like California law,
uses an objective approach to mutual assent—independently concluded the
notice provided on TransUnion’s webpage was insufficient, including because
while the scroll box contained the visible words “Service Agreement,” it “said
nothing about what the agreement regulated.” (Sgouros, supra, 817 F.3d at
p. 1035.) But what was dispositive to the court was the language under the
scroll box, which compelled the court to conclude: “TransUnion undid
whatever notice it might have been furnishing . . . by explicitly stating that a
click on the button constituted assent for TransUnion to obtain access to the
purchaser’s personal information. That text distracted the purchaser from
the Service Agreement by informing him that clicking served a particular
purpose unrelated to the Agreement.” (Id. at p. 1036, italics added.)
Similar circumstances are present here. Although Dexcom’s screen had
the title “Legal,” and the first sentence on the screen drew the user’s
attention to the hyperlinked Terms of Use agreement, and the hyperlink was
visible at the bottom of the screen, Dexcom “undid whatever notice it might
have been furnishing” with these features “by explicitly stating” that ticking
the box next to “I agree to Terms of Use” constituted the user’s assent to have
their personal information managed “consistently with” the terms of use.
(See Sgouros, supra, 817 F.3d at p. 1036.) As in Sgouros, this text
“distracted” the user by informing him or her that clicking the box “served a
particular purpose” other than agreeing to be bound to the full scope of the
24
hyperlinked Terms of Use agreement, including an arbitration provision.
(See ibid.) Under these circumstances, no agreement to arbitrate was formed
when the user clicked the checkbox next to “I agree to Terms of Use.”
Dexcom contends the notice its “Legal” screen provided to users was
sufficient because it “mirror[ed]” the notice provided in Blizzard. But the
opposite is true. In Blizzard, the license agreement incorporating the
arbitration provision was presented to users in a popup window that enabled
the user to scroll through and read the entire agreement. (Blizzard, supra,
76 Cal.App.5th at p. 940.) The immediately visible portion of the agreement
advised users to “ ‘CAREFULLY READ TH[E] AGREEMENT’ ” and to
“ ‘PLEASE NOTE THAT THE SECTION BELOW TITLED DISPUTE
RESOLUTION CONTAINS A BINDING ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS.
PLEASE READ THEM.’ ” (Id. at pp. 951–952.) Here, by contrast, Dexcom’s
“Legal” screen did not present the terms (that go on for 22 pages when
printed on standard paper) to users in a scrollable popup window giving them
immediate access to the full document without the need to open a new
webpage. Dexcom could have, but did not, place an advisal on the “Legal”
screen comparable to the one in Blizzard urging users to read the terms of
use or telling them the terms of use “ ‘CONTAINS A BINDING
ARBITRATION AGREEMENT[.]’ ” (Ibid.)
If anything, Blizzard serves to illustrate the ways in which Dexcom’s
“Legal” screen fell short of placing users on constructive notice that the
Terms of Use were intended to govern all legal disputes arising from their
relationship with Dexcom, or that such disputes would be subject to binding
arbitration. Again, “ ‘the onus must be on website owners to put users on
notice of the terms to which they wish to bind consumers.’ ” (Long, supra,
25
245 Cal.App.4th at p. 867, citing Nguyen, supra, 763 F.3d at p. 1179; accord,
Sellers, supra, 73 Cal.App.5th at p. 476; Weeks, supra, 100 Cal.App.5th at
p. 1086.) Blizzard illustrates the multitude of notice options that were
available to Dexcom, and, correspondingly, the ways in which its screen failed
to put users on notice of the terms to which they were to be bound.
In its supplemental brief, Dexcom contends sufficient notice was
provided because users were “instructed by the G6 User Guide how to install
and setup their G6 App, including by reviewing (and accepting) legal and
safety information, which includes Dexcom’s Terms of Use.” Dexcom’s
argument, which is based on the content of Lovell’s declaration, misstates the
evidence. Lovell averred that the User Guide10 “explains the steps that are
required as part of the G6 App setup process” and that “the G6 App setup
process requires the user to review legal and safety information, which
includes acceptance of Dexcom’s Terms of Use.” This bare reference to a need
to review legal information and accept Dexcom’s Terms of Use does not, as
Dexcom urges, provide the notice that was missing from the “Legal” screen.
The title of the screen already conveyed that the subjects it covered were of a
legal nature. The content of the screen presented the Terms of Use as
serving a limited legal purpose. Lovell’s averment does not establish that the
10 Although plaintiffs’ complaints included a graphic of the Dexcom G6
apparently taken from the User Guide, and although Lovell’s declaration
briefly discussed the User Guide, the User Guide itself is not in the record
before us. We also observe that Dexcom’s argument assumes the User Guide
is readily available to prospective G6 App users, a fact not established by
Lovell’s declaration. And at oral argument, Dexcom’s counsel stated he did
not believe the Terms of Use are provided to users with the Dexcom G6
device itself and acknowledged the record is devoid of evidence it is.
26
User Guide provided information sufficient to counter the misimpression
created by the text on the “Legal” screen.
Dexcom also contends, based on Meyer v. Uber Technologies, Inc. (2d
Cir. 2017) 868 F.3d 66 and Blizzard, supra, 76 Cal.App.5th 931, that the
presence of an account login screen would have signaled to prospective G6
App users they were entering into a forward-looking relationship with
Dexcom such that they reasonably should have expected to encounter
significant terms and conditions. We disagree that the facts of this case are
like Meyer and Blizzard. The user accounts in Meyer and Blizzard were
accounts that served as platforms for recurring financial transactions—that
is, exchanges of money for goods (“Loot Boxes”) or services (Uber rides). (See
Meyer, at p. 80; Blizzard, at pp. 936, 950–951; see also Keebaugh v. Warner
Bros. Entertainment (9th Cir., Apr. 26, 2024, No 22-55982) ___ F.4th ___
[2024 WL 1819651, *9] [users of video game “are notified prior to
downloading the game that the app offers in-app purchases” such that they
are “playing a mobile game with potentially unlimited in-app purchases”].)
Such accounts are “forward-looking” in the sense that they are created in
anticipation of future financial transactions between the consumer and the
provider. Here, Dexcom produced no evidence users had to enter financial
information in order to create a Dexcom account, or that the Dexcom account
served as a platform for recurring financial transactions between app users
and Dexcom. The absence of such evidence distinguishes this case from
Meyer and Blizzard.
And as described by Lovell, it was not the creation of the Dexcom
account but the initial launch of the G6 App that triggered the requirement
to accept Dexcom’s Terms of Use. In other words, users were presented with
the terms not as part of the Dexcom account creation process but as part of
27
the app launch process. This circumstance further distinguishes this case
from Meyer, in which the acceptance of Uber’s terms and conditions was
directly linked to account registration. We thus disagree the presence of the
account login screen would have signaled to users they were initiating a
forward-looking relationship with Dexcom by launching the app and thus
should expect to encounter significant terms and conditions.11
Further, as we have already noted, Dexcom presented no evidence
prospective G6 App users were required to pay for the app. In this sense, the
launch of the G6 App is comparable to the transaction in Specht v. Netscape
Communs. Corp (2d Cir. 2002) 306 F.3d 17 (Specht), in which the plaintiffs
downloaded free software from a provider’s website. (See id. at pp. 21–22.)
This court has characterized such a transaction as a limited one in which “the
consumer ‘is less likely to be looking for’ contractual terms.” (Blizzard, supra,
76 Cal.App.5th at p. 947, quoting Sellers, supra, 73 Cal.App.5th at p. 476.)
B. No Unambiguous Manifestation of Assent
11 Although the trial court found the existence of such a forward-looking
relationship in Bottiglier, its finding was based on a misunderstanding of the
relevant transaction. The court stated Bottiglier had “signed up to use
Dexcom’s G6 Continuous Glucose Monitoring System” and construed this as a
“transaction that clearly contemplated a ‘continuing, forward-looking
relationship.’ ” But Dexcom did not contend or present evidence that any of
the plaintiffs, including Bottiglier, entered arbitration agreements when they
“signed up to use” the Dexcom G6 device. Indeed, Dexcom presented no
evidence that a person needed to “sign[ ] up” to use the device at all. Instead,
Dexcom’s claim was, and is, that arbitration agreements were formed with
plaintiffs when they completed the setup process required to launch the G6
App on a mobile device for the first time. As we just explained, Dexcom did
not establish this transaction constituted the initiation of the type of forward-
looking relationship discussed in Meyer and Blizzard.
28
Not only does the content of the “Legal” screen fail to put users on
inquiry notice of an arbitration provision, but it also fails to support the
inference the act of clicking the checkbox next to “I agree to Terms of Use” is
an unambiguous manifestation of assent to the full scope of terms in the
hyperlinked webpage, including its arbitration provision. The text on the
screen explicitly told users it meant something else: that “ticking the box[ ]”
next to “I agree to Terms of Use” meant they understood their “personal
information . . . w[ould] be collected, used and shared consistently with the
. . . Terms of Use” and their personal information “w[ould] be stored and
processed by Dexcom Inc. and/or its affiliate . . . in the United States, which
may have different data protection laws than the country in which you
reside.” Although the checkbox at the bottom of the screen was next to the
statement “I agree to Terms of Use” with its embedded hyperlink, at best, the
close proximity of the checkbox to the hyperlink only gives rise to an
inference the user who clicked the checkbox was agreeing to be bound by all
terms in the hyperlinked terms, including the arbitration provision.
However, the “Legal” screen assigned two possible meanings to the act
of clicking the checkbox—one narrow and explicit, the other broad and
implicit. It therefore created ambiguity with respect to whether users who
clicked on the checkbox next to “I agree to Terms of Use” were agreeing to
have their personal information collected, used and shared “consistently
with” the Terms of Use and stored and processed by Dexcom and/or its
affiliate in the United States, or whether they were consenting to be bound by
all of the terms in the hyperlinked webpage, including the requirement of
binding arbitration in the event of a legal dispute arising from injuries
allegedly caused by Dexcom’s products. Under these circumstances, we
cannot infer from the user’s act of clicking the checkbox that the user and
29
Dexcom “agreed upon the same thing in the same sense.” (Sellers, supra, 73
Cal.App.5th at p. 460 [cleaned up].)
Dexcom contends there is no such ambiguity because there is only one
reasonable way to interpret the text on the “Legal” screen. According to
Dexcom, in the first sentence, the user agrees to be bound by the Terms of
Use accessible via the hyperlink at the bottom of the screen. In the next two
sentences, the user agrees to the “additional items” that are described in
those sentences. Dexcom concludes its argument by asserting, “there is no
way to read the meaning of checking a box next to the words ‘I agree to
Terms of Use’ other than that the user ‘agree[s] to Terms of Use.’ ”
We are not persuaded Dexcom has proposed a viable solution for the
ambiguity problem we have identified. In essence, Dexcom contends the
“Legal” screen should be interpreted to mean that when users click the box
next to “I agree to Terms of Use,” they are agreeing to all of the terms within
the hyperlinked webpage as well as the “additional items” in the second and
third sentences on the screen. But the language on the screen does not say
this. Dexcom’s undisclosed interpretation of what it means to click the
checkbox is not relevant to determining what users intend to convey by
taking that action. (See Founding Members of the Newport Beach Country
Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956
[under California’s objective approach, “ ‘[i]t is the objective intent, as
evidenced by the words of the contract, rather than the subjective intent of
one of the parties, that controls interpretation’ ”]; Berman, supra, 30 F.4th at
p. 857 [“A user’s click of a button can be construed as an unambiguous
manifestation of assent only if the user is explicitly advised that the act of
clicking will constitute assent to the terms and conditions of an
agreement.”].)
30
We therefore conclude that the prospective G6 App user’s act of clicking
the box next to “I agree to Terms of Use” on the “Legal” screen cannot be
taken as an unambiguous manifestation of assent to be bound by all of the
terms in the hyperlinked Terms of Use webpage, including the arbitration
provision.
C. Consequently, Dexcom Failed To Establish the Formation of Arbitration
Agreements with Plaintiffs
Because the process required to initially launch the G6 App neither
placed prospective app users on constructive notice of the arbitration
provision nor resulted in an unambiguous manifestation of assent to the
provision, we conclude plaintiffs did not enter an agreement to arbitrate with
Dexcom when they completed this process. (See Long, supra, 245
Cal.App.4th at p. 865 [“ ‘[r]easonably 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’ ”], quoting Specht, supra, 306 F.3d at p. 35; accord, Sellers, supra,
73 Cal.App.5th at p. 469.)
In urging us to conclude binding arbitration agreements were formed
during the G6 App setup process, Dexcom relies on cases that involved
contractual terms accessible through visually conspicuous hyperlinks but
which are otherwise distinguishable. For example, Dexcom relies on two
cases in which users were held to have entered arbitration agreements while
creating and registering accounts with a telemedicine platform in order to
receive clear-aligner orthodontic treatment via the internet. (Santana v.
SmileDirectClub, LLC (2023) 475 N.J. Super. 279 [applying New Jersey law];
Navarro v. SmileDirectClub, Inc. (N.D. Cal, June 1, 2022, No. 22-cv-00095-
WHO) 2022 WL 1786582.) But the transactions at issue here are materially
different from the transactions at issue in the SmileDirectClub cases. In the
31
SmileDirectClub cases, the terms and conditions that contained the
arbitration provision were presented to the plaintiffs when they created and
registered an account with the provider during an online registration process
they were required to complete before they could access the provider’s
products or services. (See Santana, at p. 283; Navarro, at p. *1.) Here, by
contrast, the arbitration provision was not presented to users during the
primary transaction of acquiring the Dexcom G6 device, but rather in the
secondary and optional transaction of installing the G6 App. In this context,
users were less likely to anticipate encountering new contractual terms
altering their legal rights in the event of a dispute with Dexcom.
Also, there was no evidence in the SmileDirectClub cases the screen
with the clickwrap contained text that undermined the conclusion they were
agreeing to the full scope of hyperlinked terms, including the arbitration
provision. The remaining cases on which Dexcom relies are similarly
distinguishable because the websites containing the hyperlinked terms did
not have text creating ambiguity as to what the user was manifesting by
clicking the associated button or checkbox, and the courts simply relied on
the conspicuousness of the hyperlink in concluding sufficient notice of the
terms was provided.12
12 See Patrick v. Running Warehouse, LLC (9th Cir. 2024) 93 F.4th 468,
477 [website provided reasonably conspicuous notice of terms where
hyperlink to terms appeared on an uncluttered page and was colored bright
green against a white background and adjacent black text]; Houtchens v.
Google LLC (N.D. Cal. 2023) 649 F.Supp.3d 933, 937 [website provided
reasonably conspicuous notice of terms where the hyperlinks were in blue
text in a sentence that otherwise used gray text and appeared on screens that
were uncluttered]; Hooper v. Jerry Ins. Agency, LLC (N.D. Cal. 2023) 675
F.Supp.3d 1027, 1032, 1035 [website adequate to inform user she would be
agreeing to hyperlinked terms, including arbitration provision, by clicking a
32
Here, the feature that defeats notice is a matter of content rather than
design. Dexcom chose to include on its “Legal” screen language that
explicitly told users clicking the box next to the Terms of Use hyperlink at
the bottom of the screen meant they understood their personal information
would be collected, used and shared “consistently with” the Terms of Use.
Under these circumstances, the user’s act of clicking the checkbox next to “I
agree to Terms of Use” cannot be interpreted as an unambiguous
manifestation of assent to be bound by the full scope of hyperlinked terms,
including the arbitration provision. Therefore, no agreements to arbitrate
were formed during the G6 App setup process.13
“Continue” button where the text directly underneath the button stated, “By
clicking ‘Continue’ you agree to . . . the Jerry Terms of Use,” and the phrase
“Terms of Use” was a hyperlink written in bright pink font]; S.S. by and
through Stern v. Peloton Interactive, Inc. (S.D. Cal. 2021) 566 F.Supp.3d
1019, 1040–1041 [impliedly accepting company’s contention that a
hyperlinked terms of use agreement containing an arbitration provision was
sufficiently conspicuous such that the user manifested acceptance to it by
clicking the associated checkbox].
13 As an independent means of establishing contract formation, Dexcom
argues that plaintiffs’ counsel admitted the existence of arbitration
agreements in all five cases. We disagree. “[A]n admission is not binding if it
is made improvidently or unguardedly, or if it is in any way ambiguous[,]” or
if, “[i]n context, the admission . . . lacks the gravity of a complete
relinquishment of rights on the issue[.]” (Irwin v. Pacific Southwest Airlines
(1982) 133 Cal.App.3d 709, 714.) In the Herzog, Moore, Pierre, and Tsakiris
cases, the purported admission is a statement in the plaintiffs’ opposition
briefs to the effect that the plaintiff/decedent was required to “agree[ ] to the
‘Terms of Use’ Agreement that accompanied the device.” The quoted
statement was part of a narrative intended to illustrate the plaintiffs’ lack of
choice; in context, it lacks the gravity of a complete relinquishment of rights
on the issue of contract formation. Moreover, counsel’s statement cannot be
taken as an unambiguous concession given that each opposition brief went on
to present a developed argument urging the trial court to conclude “Dexcom
33
As a result, Dexcom failed to establish the existence of arbitration
agreements with Hebert, Moore, Pierre, Tsakiris, or Bottiglier, and the trial
court erred by granting Dexcom’s motions to compel arbitration. Aside from
one issue we address below relating to the court’s erroneous interpretation of
the Herzog complaint, we need not and do not reach plaintiffs’ remaining
contentions regarding the date on which Tsakiris completed the G6 App
setup process and the unconscionability of Dexcom’s arbitration provision.14
III.
This Court’s Supplemental Briefing Order Was Proper
Our dissenting colleague believes plaintiffs did not dispute the
existence of an arbitration agreement in the trial court and that we have
somehow transgressed our role as neutral arbiters by seeking supplemental
briefing on the issue of whether ambiguity prevented formation of an
has failed to show the arbitration agreement was conspicuous and validly
accepted by the [plaintiff/ decedent].” And to the extent Dexcom contends
plaintiffs’ counsel also admitted the existence of arbitration agreements by
stating during the motion hearing that for Moore, Pierre, and Tsakiris,
“Dexcom did provide information seeming to indicate that the user had
clicked on some information that would agree to the terms of the use on
certain dates,” we disagree this statement was an unambiguous concession
that valid agreements had thereby been formed.
Finally, we reject Dexcom’s contention that plaintiffs’ counsel admitted
the existence of an arbitration agreement by stating during the Bottiglier
motion hearing that “a party knowingly and voluntarily entering into a
contract [is bound] by those terms[.]” This was a statement of an abstract
proposition of law, not a concession that Bottiglier, specifically, entered a
valid arbitration agreement.
14 Although Pierre asserted in her writ petition that Dexcom failed to
establish she used the G6 App, in the consolidated reply filed on behalf of all
plaintiffs, she withdrew this position.
34
arbitration agreement. (Dis. opn., at. pp. 3–5.) Neither of these assertions is
true.
First, and contrary to the dissent’s claim otherwise, the plaintiffs in
Herzog, Moore, Pierre, and Tsakiris did in fact dispute the existence of
agreements to arbitrate. Each of their opposition briefs contained an
identical, fully developed argument based on Long, supra, 245 Cal.App.4th
855.15 Long held that Terms of Use hyperlinks on a defendant’s website
failed to satisfy the California standard for internet contract formation,
which requires “ ‘[r]easonably conspicuous notice of the existence of contract
terms and unambiguous manifestation of assent to those terms.’ ” (See id. at
pp. 865–866, quoting Specht, supra, 306 F.3d at p. 35.) Plaintiffs argued,
among other things, that Long was “exactly on point with the case at bar”
and that “Dexcom has failed to show the arbitration agreement was
conspicuous and validly accepted by the [plaintiffs].” In Bottiglier, the
plaintiff’s arguments differed but she nevertheless asserted an agreement to
arbitrate had not been formed.
And in resolving the disputed formation issue, the trial court expressly
applied this court’s internet contract formation test to Dexcom’s moving
evidence. (Sellers, supra, 73 Cal.App.5th at p. 461 [“[I]n order to establish
15 Although plaintiffs did not raise their formation arguments under a
separate heading, the civil rule governing the content of trial court
memoranda does not require this. (See Cal. Rules of Court, rule 3.1113(b)
[governing contents of memorandum; providing that “[t]he memorandum
must contain a statement of facts, a concise statement of the law, evidence
and arguments relied on, and a discussion of the statutes, cases, and
textbooks cited in support of the position advanced”]; cf. id., rule
8.204(a)(1)(B) [governing contents of appellate briefs; providing that “[e]ach
brief must: . . . [s]tate each point under a separate heading”].)
35
mutual assent for the valid formation of an internet contract, a provider must
first establish the contractual terms were presented to the consumer in a
manner that made it apparent the consumer was assenting to those very
terms when checking a box or clicking on a button.”].) Thus, the existence of
an arbitration agreement, including both the existence of mutual assent and
the question of whether Dexcom’s G6 App startup wizard screen
demonstrated mutual assent, was raised in the trial court in all of the cases
before us.
Second, in each of their petitions, plaintiffs have challenged the
conclusion that they agreed to arbitrate, and Dexcom has responded by
arguing they entered valid clickwrap agreements when they checked the box
on the G6 App startup wizard “Legal” screen. Dexcom’s contract formation
theory relies on the G6 App “Legal” screen such that the existence of an
arbitration agreement presents an issue of law. Every court that has
examined whether a contract was formed by a user’s actions on a website has
considered the content of that website. (See e.g. Specht, supra, 306 F.3d at
pp. 31–32; Long, supra, 245 Cal.App.4th at pp. 865–867; Sellers, supra, 73
Cal.App.5th at pp. 477–480; Blizzard, supra, 76 Cal.App.5th at pp. 950–954.)
Although neither the parties nor the trial court specifically discussed the
significance of the text on the “Legal” screen, our analysis of the issue would
have been incomplete had we decided the issue based on the color of the text
while ignoring its meaning.
Thus, contrary to the dissent’s perspective, in our view it was entirely
appropriate for this court to issue a supplemental briefing order directing the
parties to address the significance of the text on the screen even though the
precise issue was not previously considered. “[S]upplemental briefing is
proper when a court wishes to consider a point of law following the regular
36
briefing of a case on appeal.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11
Cal.4th 1, 24 (Waller); see Gov. Code, § 68081 [authorizing courts to decide
issues not initially proposed or briefed after “afford[ing] the parties an
opportunity to present their views on the matter through supplemental
briefing”]; People v. Alice (2007) 41 Cal.4th 668, 674 (Alice) [appellate court
has a duty “ ‘to allow supplemental briefing before it renders a decision which
was not proposed or briefed by any party”].) Indeed, this court has previously
reversed an order denying arbitration after soliciting supplemental briefing
on a dispositive issue “mentioned only in passing in defendants’ briefs.”
(Thomas v. Westlake (2012) 204 Cal.App.4th 605, 612, fn. 4.) “[T]his court
has the discretion to consider a theory presented for the first time on appeal
when that theory involves only a legal question determinable from the
uncontroverted facts and those facts could not have been altered by the
presentation of additional evidence.”16 (County of Kern v. T.C.E.F., Inc.
16 Citing Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228,
1237–1238, the dissent speculates that Dexcom’s User Guide is evidence
potentially “clear[ing] up the ambiguity.” (Dis. opn., at pp. 5–6, fn. 4.) It
identifies this imagined possibility as a reason we cannot be sure our decision
would not be altered by additional evidence, such that this court supposedly
erred in issuing its supplemental briefing order. The dissent’s reasoning is
flawed. Esparza addresses ambiguity in a written agreement and the
availability of parol evidence to clarify whether an arbitration clause lacked
mutuality. (Esparza, at pp. 1237–1238.) That is not the ambiguity at issue
here. Rather, when determining whether a contract was formed by a user’s
actions on a given website (here, clicking on a checkbox), courts are required
to evaluate whether those actions constitute an unambiguous manifestation
of assent to the website’s terms. (See e.g. Specht, supra, 306 F.3d at p. 31;
Sellers, supra, 73 Cal.App.5th at p. 460.) Thus the only way the User Guide
could conceivably resolve the ambiguity created by the text on the “Legal”
screen is if (1) it contained a single, coherent explanation of what it meant for
the user to click the checkbox on the “Legal” screen, and (2) Dexcom produced
evidence the plaintiffs actually read and relied on the hypothetical portions of
37
(2016) 246 Cal.App.4th 301, 326; see People v. Williams (1998) 17 Cal.4th
148, 161, fn. 6 [“An appellate court is generally not prohibited from reaching
a question that has not been preserved for review by a party” and “[w]hether
or not it should do so is entrusted to its discretion”]; Mitchell v. Atwell Island
Water Dist. (2020) 45 Cal.App.5th 624, 634 [deciding appeal based on a
ground that was not relied on by the trial court after soliciting and receiving
supplemental briefing].) It was therefore entirely proper for this court to
seek supplemental briefing.17
the User Guide, and not the text on the “Legal” screen, when they clicked the
checkbox on the screen. This is an exceedingly unlikely scenario. Moreover,
in response to the supplemental briefing order, Dexcom itself did not claim
the User Guide would clarify the ambiguity created by the text on the screen.
Indeed, although it requested leave to supplement the record to introduce
evidence on another issue, it did not do so on this question. Accordingly, we
disagree with the dissent.
17 In claiming that we have somehow usurped our proper role by issuing a
supplemental briefing order seeking the parties’ input on relevant points of
law that had not yet been briefed, the dissent relies on inapposite cases and
in doing so appears to misapprehend the relevant procedural context as well
as the governing law. (See dis. opn., at p. 5, citing Gonzalez v. Commission
on Judicial Performance (1983) 33 Cal.3d 359, 371, fn. 6 [stating that a trial
court’s “extended and improper examination of witnesses . . . places the judge
in the role of advocate and may detract from the public image of the court as
an impartial tribunal”]; In re G.B. (2018) 28 Cal.App.5th 475, 488 [a juvenile
court “lacks the authority to, on its own motion, initiate dependency
proceedings against a parent” and exceeds its role as impartial arbiter by
doing so].) Unlike these cases, here the relevant authorities hold that
“supplemental briefing is proper when a court wishes to consider a point of
law following the regular briefing of a case on appeal.” (Waller, supra, 11
Cal.4th at p. 24, italics added; see Gov. Code, § 68081.) Courts of review err
not by deciding new legal issues, but by doing so without providing the
parties the opportunity to brief them. (Alice, supra, 41 Cal.4th at pp. 677–
679.)
38
IV.
As to Herzog, Dexcom Also Failed To Establish the Decedent Used the G6 App
In Herzog, Dexcom was unable to establish that its business records
showed when (and if) the decedent, Hebert, completed the G6 App setup
process. Instead, it claimed the Herzog plaintiffs alleged in their complaint
that Hebert had used the G6 App and argued he could not have done so
without completing the G6 App setup process and accepting Dexcom’s terms
of use, including the arbitration provision. In ruling that Dexcom proved the
existence of an agreement to arbitrate in Herzog, the trial court implicitly
accepted Dexcom’s interpretation of the plaintiffs’ complaint.
In their writ petition, the Herzog plaintiffs contend they did not allege
Hebert used the G6 App, and Dexcom’s claim to the contrary relied on a
misinterpretation of their complaint. We have independently considered the
allegations relied on by Dexcom, and we agree with the plaintiffs. (See e.g.
Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [appellate
courts interpret writings de novo]; Centinela Freeman Emergency Medical
Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010 [the
legal effect of a pleading is determined de novo].)
None of the allegations relied on by Dexcom contain an affirmative
factual admission that Hebert used the G6 App. In the parts of the complaint
And to the extent the dissent further suggests that our result “is
contrary to the strong public policy in favor of arbitration” and “manifests . . .
judicial hostility” to that policy (dis. opn., at pp. 12–13), there is no such
public policy where, as here, there is no agreement to arbitrate (Victoria v.
Superior Court (1985) 40 Cal.3d 734, 739 [“judicial enthusiasm for alternative
methods of dispute resolution must not in all contexts override the rules
governing the interpretation of contracts”]; ibid. [“ ‘the policy favoring
arbitration cannot displace the necessity for a voluntary agreement to
arbitrate’ ”]).
39
cited by Dexcom, plaintiffs alleged that in addition to the Dexcom G6 device
(which they called “the G6 System”), Dexcom “also designs, develops,
manufactures, promotes, and supplies [sic] Dexcom G6 software application
(hereinafter ‘G6 App’).” (Italics added.) They later alleged that “[d]uring the
relevant time, Decedent used Dexcom’s software to obtain and review glucose
information from the G6 System.”
Dexcom contends plaintiffs admitted Hebert’s G6 App use by alleging
he used “the G6 System,” which the plaintiffs purportedly “defined to include
a receiver/smart device and software that they identified as the G6 App.”
(Boldface omitted.) We disagree. Plaintiffs did not define the “G6 System”
(i.e., the Dexcom G6 device) to include the G6 App. Rather, they alleged that
in addition to the Dexcom G6, Dexcom “also” supplies the G6 App. By using
the connecting word “also,” they identified the G6 App as an item that stood
apart from the Dexcom G6 device. Nor did plaintiffs define “G6 App” to mean
any Dexcom software. Rather, they defined the G6 App as a “Dexcom G6
software application.” Plaintiffs’ subsequent, unspecified reference to
Hebert’s use of “Dexcom’s software” cannot be taken as an admission he
specifically used the G6 App.18
18 The dissent concludes that the G6 App is the only software mentioned
in the complaint and that any reference to Dexcom’s software must therefore
be a reference to the G6 App. (Dis. opn., at p. 8, fn. 5.) We disagree. This
conclusion ignores that Dexcom’s own “Legal” screen distinguishes Dexcom’s
“mobile application[s]” from its “software platform[s],” which tends to
indicate Dexcom supplies software other than just the mobile app. It also
ignores the complaint’s allegations, which specifically define “G6 App” to
mean the “G6 software application.” The Herzog plaintiffs merely alleged
that Hebert used “Dexcom’s software”; they did not allege that he used the
G6 App. By employing the generic word “software” rather than their defined
term “G6 App,” the plaintiffs conveyed that the “software” they were
referring to was something other than the G6 App.
40
In its return, Dexcom argues the Herzog plaintiffs admitted Hebert’s
G6 App use by alleging in their complaint that Hebert “reasonably relied on
Dexcom’s representations as to the G6 System and the G6 App’s accuracy and
efficacy.” We again disagree. First, that Hebert allegedly relied on Dexcom’s
representations about the G6 App does not establish he actually used the G6
App. Second, the quoted allegation is a mixed factual and legal conclusion
and therefore cannot be considered a binding judicial admission. (Castillo v.
Barrera (2007) 146 Cal.App.4th 1317, 1324.)
Further, even if we were to agree with Dexcom that the Herzog
complaint contains allegations admitting Hebert’s use of the G6 App, this
would not establish all of the facts necessary to prove he agreed to
arbitration. To prove an arbitration agreement was formed when Hebert
completed the G6 App setup process, Dexcom must establish the parties
“agreed upon the same thing in the same sense.” (Avery, supra, 218
Cal.App.4th at p. 68.) “[I]t is not sufficient for the party seeking to compel
arbitration to show the parties generally agreed to arbitrate their disputes by
incorporating some arbitration provision into their contract. Rather, the
party must establish the precise arbitration provision the parties
incorporated into their agreement to govern their disputes.” (Ibid.)
Here, Lovell’s declaration established only that the Terms of Use
contained arbitration provisions during three periods of time. Therefore, the
date of completion of the G6 App setup process was an essential component of
Dexcom’s contract formation theory. To establish that an agreement to
arbitrate was formed with Hebert when he purportedly finished setting up
the G6 App on a mobile phone, Dexcom needed to show he completed the
setup process during the operative period of one of the versions of the Terms
of Use attached to Lovell’s declaration. Plaintiffs’ complaint does not supply
41
the date when Hebert completed the app setup process. Therefore, it does not
suffice to establish that he agreed to arbitration. (Avery, supra, 218
Cal.App.4th at p. 68.)
DISPOSITION
The order to show cause is discharged, and the petitions are granted.
Let a peremptory writ of mandate issue directing the trial court to vacate its
orders compelling arbitration, and to enter new and different orders denying
the motions to compel arbitration. Plaintiffs are entitled to recover their
costs incurred in this writ proceeding. (Cal. Rules of Court, rule 8.278(a)(1).)
DO, J.
I CONCUR:
KELETY, J.
42
Irion, Acting P. J., Dissenting.
I disagree with the majority’s decision to grant relief in these
consolidated writ proceedings. No plaintiff presented to the trial court the
contract formation theory the majority uses to overturn the orders granting
the motions of Dexcom, Inc. (Dexcom) to compel arbitration, and in my view
that theory is flawed. I think the trial court correctly rejected the grounds on
which plaintiffs opposed to the motions. I would deny the petitions.
I
I accept the majority’s summary of the factual and procedural
background of the underlying litigation, with the exceptions of footnotes 4
and 5. The majority does not describe the papers plaintiffs filed in opposition
to Dexcom’s motions to compel arbitration. Because their content is
important to my analysis, I provide a brief description.
Lara Herzog and Melanie Samora, who represent their deceased father,
Henry J. Hebert,1 opposed Dexcom’s motion solely on the ground the
arbitration agreement was unconscionable. They stated in their opposition
that Dexcom “failed to put forth any evidence [Hebert] agreed to the
arbitration clause in this case,” but they presented no evidence or separate
legal argument on contract formation. Herzog and Samora also stated in the
opposition that to use the Dexcom G6 Continuous Glucose Monitoring System
(the Dexcom G6), Hebert “had to follow certain steps in order to activate and
use the G6 System, which included creating a Dexcom account and agreeing
to the ‘Terms of Use’ Agreement . . . that accompanied the device,” and that
he “began using the Dexcom G6 System.” These statements were consistent
1 Subsequent references to “plaintiffs” should be taken to include Hebert
when the context indicates the reference is to him rather than to Herzog and
Samora.
with allegations Herzog and Samora had made in their complaint. They
submitted no declarations, but attached a copy of the Terms of Use to their
opposition memorandum.
The opposition papers filed by Traci Moore, Tiffanie Tsakiris, and Aliya
Campbell Pierre were substantially the same as those filed by Herzog and
Samora. Moore, Tsakiris, and Pierre each acknowledged having to agree to
the Terms of Use, including the arbitration agreement, as part of the process
of creating a Dexcom account and using the Dexcom G6. Each of these
plaintiffs also opposed enforcement of the arbitration agreement only on the
ground it was unconscionable. None submitted a declaration or any other
evidence in opposition to the motion to compel arbitration, but each attached
a copy of the Terms of Use to her opposition memorandum.
Brenda Bottiglier’s opposition was different. She argued there was no
valid agreement to arbitrate, because she never read the Terms of Use and,
even if she had, she would not have known what arbitration was or how it
affected her legal rights. Bottiglier also argued the arbitration agreement
was unenforceable, because it exceeded her reasonable expectations and was
otherwise unconscionable. Unlike the other plaintiffs, Bottiglier submitted a
declaration as part of her opposition. She said: (1) she relied on her doctor’s
expertise in prescribing the Dexcom G6; (2) nobody told her an arbitration
agreement was associated with the Dexcom G6; (3) she used the G6 CGM
Mobile Application (the G6 App) but never read the Terms of Use; and (4) had
she read them, she would not have known what arbitration was or how it
affected her legal rights. Bottiglier also attached a copy of the Terms of Use
to her opposition memorandum.
2
II
The majority bases its decision to grant writ relief on the ground that
an ambiguity in the content of the Legal webpage presented to Dexcom G6
users when they initially launch the G6 App prevents formation of an
arbitration agreement between users and Dexcom. According to the majority,
the inclusion on that page of two sentences about use of sensitive health
information prevents users who tick the box next to “I agree to Terms of Use”
from knowing whether they are agreeing only as to use of sensitive health
information or as to all terms included in the hyperlinked webpage. (Maj.
opn., ante, pp. 28–31.) Based on this purported uncertainty, the majority
concludes that ticking the box “cannot be taken as an unambiguous
manifestation of assent to be bound by all of the terms of the hyperlinked
Terms of Use webpage, including the arbitration provision.” (Maj. opn., ante,
pp. 30–31.) For two independent reasons, I disagree with the majority’s
decision to grant writ relief on this ground.
A
One reason I object to the majority’s use of the theory that an
ambiguity prevented formation of an arbitration agreement as the basis for
granting writ relief is that no party ever presented that theory to the trial
court. A reviewing court generally does not allow a party to argue one theory
in the trial court and then argue a different theory in the reviewing court,
because to do so would be unfair to the opposing party and to the trial court.
(Ernst v. Searle (1933) 218 Cal. 233, 240–241; Mireskandari v. Gallagher
(2020) 59 Cal.App.5th 346, 371; Humane Society of U.S. v. Superior Court
(2013) 214 Cal.App.4th 1233, 1272–1273; see Mosby v. Superior Court (1974)
43 Cal.App.3d 219, 228 [“Contentions not presented to the trial court may not
be raised here for the first time.”].) None of the plaintiffs opposed Dexcom’s
3
motions to compel arbitration on the ground that the two sentences about use
of sensitive health information that appeared on the Legal webpage when the
G6 App was initially launched created an ambiguity that prevented
formation of an arbitration agreement. Herzog, Samora, Moore, Tsakiris,
and Pierre did not dispute the existence of an arbitration agreement; they
opposed the motion solely on the ground the arbitration agreement was
unconscionable.2 Bottiglier argued there was no arbitration agreement, but
only on the ground she had not read the Terms of Use and did not know what
arbitration meant.3 Any claim that ambiguity in the content of the Legal
page prevented contract formation was forfeited by failure of any plaintiff to
raise it in the trial court. (GRFCO, Inc. v. Superior Court (2023)
89 Cal.App.5th 1295, 1312–1313; Meridian Financial Services, Inc. v. Phan
(2021) 67 Cal.App.5th 657, 700.)
The theory that an ambiguity prevented formation of an arbitration
agreement was not raised in any of the writ petitions filed in this court
2 The majority asserts these plaintiffs “did in fact dispute the existence of
agreements to arbitrate” by including in their opposition memoranda “an
identical, fully developed argument based on Long [v. Provide Commerce, Inc.
(2016)] 245 Cal.App.4th 855.” (Maj. opn., ante, pp. 34–35.) I do not think
that is a fair characterization of the record. Plaintiffs cited Long for the point
that the arbitration provision in the Terms of Use was not conspicuous, and
they did so in a paragraph that was part of a legal argument under the
heading “THE ARBITRATION PROVISION IS PROCEDURALLY
UNCONSCIONABLE” and subheading “Oppression.” Nowhere in their
memoranda did plaintiffs set out a separate argument that no arbitration
agreement existed.
3 Bottiglier did not renew the argument in her writ petition. I deem it
abandoned and do not discuss it further. (Joshi v. Fitness Internat., LLC
(2022) 80 Cal.App.5th 814, 826; Kaiser Foundation Hospitals v. Superior
Court (2005) 128 Cal.App.4th 85, 106, fn. 17.)
4
either. All plaintiffs challenged the order compelling arbitration on the same
three grounds: The arbitration agreement (1) was not voluntary, (2) exceeds
their reasonable expectations, and (3) is unconscionable. No plaintiff
mentioned any ambiguity that purportedly prevented formation of an
arbitration agreement. The first suggestion of such an ambiguity was by this
court in its order directing the parties to file supplemental briefs on whether
the sentences about use of sensitive health information that appear on the
Legal webpage when a user initially launches the G6 App “create[ ]
ambiguity with respect to whether ticking the box next to the phrase ‘Terms
of Use’ is an indication of assent to the terms in the hyperlinked 22-page
‘DEXCOM TERMS OF USE’ document.” In my view, “[i]t is not this court’s
role to construct arguments that would undermine the lower court’s judgment
and defeat the presumption of correctness.” (Needelman v. DeWolf Realty
Co., Inc. (2015) 239 Cal.App.4th 750, 762.) To avoid the appearance of acting
as an advocate for a party, a court generally should leave the selection of the
issues to be raised to the parties and confine itself to consideration of those
issues. (See, e.g., Gonzalez v. Commission on Judicial Performance (1983)
33 Cal.3d 359, 371, fn. 6; In re G.B. (2018) 28 Cal.App.5th 475, 487.)
Respectfully, I believe this court went beyond its proper role of neutral
decisionmaker by suggesting a new ground on which plaintiffs could
challenge the trial court’s orders compelling arbitration and then adopting
that ground as the basis for its decision to overturn those orders.4
4 I of course agree with the majority that we have discretion to order
supplemental briefing on a legal point not adequately covered by the regular
briefing (see maj. opn., ante, pp. 36–38), but I disagree the supplemental
briefing ordered in this case was appropriate. In my view, we should not
raise a new legal theory unless (1) it is potentially dispositive of an issue
properly before us, (2) we can decide the issue based on the existing record,
5
B
I also disagree with the majority’s conclusion that Dexcom did not
establish the existence of arbitration agreements binding on plaintiffs
because, the majority says, ambiguity in the content of the Legal webpage
presented to Dexcom G6 users upon initial launch of the G6 App prevented
formation of the agreements. Formation of any agreement requires the
mutual consent of the parties. (Civ. Code, §§ 1550, subd. 2, 1565, subd. 2.)
“Consent is not mutual, unless the parties all agree upon the same thing in
the same sense.” (Id., § 1580.) Whether there has been consent sufficient to
form a contract is determined “by the use of an objective test,” namely,
whether the parties’ words or conduct reasonably manifested mutual assent.
(Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114; accord, Moritz v.
Universal City Studios LLC (2020) 54 Cal.App.5th 238, 246.) “If there is no
evidence establishing a manifestation of assent to the ‘same thing’ by both
parties, then there is no mutual consent to contract and no contract
formation.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th
793, 811.) The party seeking to enforce an arbitration agreement has the
and (3) we can be sure our decision would not be altered by presentation of
additional evidence. (See, e.g., Esparza v. KS Industries, L.P. (2017)
13 Cal.App.5th 1228, 1237–1238.) I am not satisfied the third criterion is
met here. Plaintiffs’ complaints mention a User Guide that apparently
accompanied the Dexcom G6, and Lovell stated in his declarations that “[t]he
User Guide explains the steps that are required as part of the G6 App setup
process.” The User Guide is not in the record, however, and so we do not
know what information, if any, it provided users about the Terms of Use in
general or the arbitration provision in particular. Had plaintiffs made the
argument that ambiguity in the Legal webpage prevented the mutual assent
needed for formation of the arbitration agreement, Dexcom might have
submitted to the trial court the User Guide or some other evidence to clear up
the ambiguity.
6
burden to prove its existence. (Code Civ. Proc., § 1281.2; Engalla v.
Permanente Medical Group (1997) 15 Cal.4th 951, 972 (Engalla).) As I shall
explain, Dexcom sustained its burden as to all plaintiffs to show mutual
consent to the arbitration provision of the Terms of Use.
1
In support of each of its motions to compel arbitration, Dexcom
submitted a declaration from Eric Lovell, a senior manager of data privacy at
Dexcom, who described the process required for a Dexcom G6 user to set up
an account and use the G6 App on the user’s personal mobile device. One
step required the user to tick a box next to the statement, “I agree to Terms
of Use,” that appeared on a webpage titled “Legal.” The words “Terms of
Use” appeared in green against a white background and constituted a
hyperlink that, if clicked, would display the Terms of Use. Lovell stated a
Dexcom G6 user cannot use the G6 App without accepting the Terms of Use.
He attached to his declaration copies of three versions of the Terms of Use,
which were in effect at different times starting from September 18, 2018.
Each version contained the same provision requiring binding arbitration of
“all disputes arising out of or related to this Agreement or any aspect of the
relationship between you and Dexcom,” except for small claims court
disputes. (Capitalization altered.) Lovell also attached a screen shot
depicting the Legal page presented to a user upon initial launch of the G6
App. As to Moore, Tsakiris, and Bottiglier, Lovell stated the date on which
Dexcom’s business records showed each had completed the G6 App set up and
accepted the Terms of Use. Lovell did not supply similar information for
Hebert (Herzog and Samora’s decedent) or Pierre. To establish an arbitration
agreement with them, Dexcom instead relied on the statement in Lovell’s
declaration that the G6 App cannot be used without acceptance of the Terms
7
of Use and allegations in the complaints that Hebert and Pierre used the G6
App. (See maj. opn., ante, pp. 5–11.)5
The evidence of the use of the G6 App by plaintiffs sufficed to establish
mutual assent to the arbitration provision in Dexcom’s Terms of Use. An
enforceable agreement is formed online when a website provides reasonably
conspicuous notice of the terms to which a consumer will be bound and the
consumer takes some action, such as clicking a button or ticking a box, that
unambiguously manifests assent to the terms. (Patrick v. Running
Warehouse, LLC (9th Cir. 2024) 93 F.4th 468, 476 [applying California law];
Houtchens v. Google LLC (N.D.Cal. 2023) 649 F.Supp.3d 933, 939–942
[same]; B.D. v. Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 944,
954.) The first sentence on the Legal webpage a user sees upon initial launch
of the G6 App states: “You understand and agree that your use of this
website or any DexCom, Inc. mobile application or software platform for your
DexCom continuous glucose monitor is subject to the Terms of Use, Privacy
5 Herzog and Samora alleged that Dexcom “designs, develops,
manufactures, promotes and supplies Dexcom G6 software application
(hereinafter ‘G6 App’) for either its own local receiver or for smartphones and
smartwatches like iPhones, Apple Watch and Android devices. The G6 App
enables the G6 System users to use their smart devices as the display device
to receive real-time blood glucose readings, notifications and sound alarms
related to potential hyperglycemic and hypoglycemic events.” (Fn. omitted.)
They also alleged their decedent (Hebert) “used Dexcom’s software to obtain
and review glucose information from the G6 System.” The only software
mentioned in the complaint is the G6 App. Pierre and the other plaintiffs
made the same allegations regarding their use of the G6 App. These
allegations bind plaintiffs. (Brown v. Aguilar (1927) 202 Cal. 143, 149;
Shirvanyan v. Los Angeles Community College Dist. (2020) 59 Cal.App.5th
82, 100; Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th
1264, 1271.) I disagree with the majority’s contrary conclusion. (Maj. opn.,
ante, pp. 39–41.)
8
Policy and any other acknowledgment listed below.” Lower on the page and
next to a box to be ticked is the statement, “I agree to Terms of Use.” The
page has many features of webpages courts have determined provided
reasonably conspicuous notice of contractual terms. The words “Terms of
Use”: (1) are set out in a contrasting color (green against a white background
with otherwise black text); (2) constitute a hyperlink that, if clicked, would
display the Terms of Use; (3) appear next to a box the user must tick to
accept them; and (4) are unobscured on a page that is uncluttered.
(Keebaugh v. Warner Bros. Entertainment Inc. (9th Cir. 2024) ___ F.4th ___,
___ [2024 WL 1819651, p. *10]; Patrick, at p. 477; Houtchens, at pp. 941–942;
Blizzard, at p. 951.) Moreover, use of the G6 App requires establishment of a
user account and download of the G6 App and involves transmission of blood
glucose levels, which the user must track for a lifetime. Such circumstances
make it “ ‘reasonable to expect that the typical consumer . . . contemplates
entering into a continuing, forward-looking relationship’ governed by terms
and conditions.” (Blizzard, at p. 951; Keebaugh, at p. ___ [2024 WL 1819651,
p. *10] [“the entire point of the download is to have continued access to [blood
glucose level]”]. I thus conclude that by using the G6 App, which required
ticking the box next to “I agree to Terms of Use,” plaintiffs unambiguously
manifested their assent to the Terms of Use, including the agreement to
arbitrate disputes with Dexcom. (Patrick, at p. 477; Houtchens, at p. 942;
Blizzard, at p. 951.)6
6 Hebert’s agreement to arbitrate with Dexcom is binding on Herzog and
Samora to the extent they assert claims that would belong to Hebert had he
not died. (See Thomas v. Westlake (2012) 204 Cal.App.4th 605, 613, fn. 5
[successor in interest is bound by decedent’s arbitration agreement].)
9
2
The majority reaches the opposite conclusion by claiming the Legal
webpage was ambiguous about whether ticking the box next to “I agree to
Terms of Use” meant the user agreed to all Terms of Use, including the
arbitration provision, or agreed only to have personal information used in
accordance with the Terms of Use. (Maj. opn., ante, pp. 28–31.) Relying on
Sgouros v. TransUnion Corp. (7th Cir. 2016) 817 F.3d 1029, 1036 (Sgouros),
the majority says Dexcom “ ‘undid whatever notice it might have been
furnishing’ ” about the arbitration provision in the Terms of Use and
“ ‘distracted’ ” the user from that provision by stating on the Legal page that
ticking the boxes next to “I agree to Terms of Use” and “I agree to Privacy
Policy” meant the user understood that personal information would be used
consistently with the Privacy Policy and Terms of Use. (Maj. opn., ante,
p. 24.) According to the majority, a user who ticked the boxes might have
agreed not to all the Terms of Use but only to those governing use of personal
information. (Maj. opn., ante, p. 29.) For there to be ambiguity, however, the
language used must be reasonably susceptible to more than one meaning.
(Breathe Southern California v. American Lung Assn. (2023) 88 Cal.App.5th
1172, 1181; Curry v. Moody (1995) 40 Cal.App.4th 1547, 1552.) I do not think
the language on the Legal page, considered as a whole, is reasonably
susceptible to the meaning the majority gives it.
The Legal webpage contains three sentences of text followed by two
clearly set out boxes, one next to “I agree to Terms of Use” and the other next
to “I agree to Privacy Policy,” and below them is a “Submit” button. (Maj.
opn., ante, p. 7.) The first of the three sentences of text tells the user that use
of the G6 App “is subject to the Terms of Use . . . listed below.” (Maj. opn.,
ante, p. 7.) The statements next to the boxes below the text have embedded
10
hyperlinks that, if clicked, take the user to webpages that display the Terms
of Use or Privacy Policy. (Maj. opn., ante, p. 7.) By clicking the hyperlink to
the Terms of Use, the user would quickly learn they “CONTAIN[ ] A
MANDATORY ARBITRATION OF DISPUTES PROVISION.” (Maj. opn.,
ante, pp. 8–9 & fn. 3.) I conclude a reasonable user who ticked the box next to
“I agree to Terms of Use” and clicked the Submit button would know that
doing so constituted consent to all Terms of Use, including the arbitration
provision.
Dexcom neither “ ‘undid’ ” notice of the arbitration provision nor
“ ‘distracted’ ” the user from it (maj. opn., ante, p. 24) by also notifying the
user in the second sentence of text on the Legal webpage that by ticking the
box next to “I agree to Terms of Use” the user acknowledged personal
information would be handled in accordance with the Terms of Use. That
notification contained no words of limitation (e.g., exclusively, limited to,
only, solely) that would restrict the subject matter to which the Terms of Use
applied to anything narrower than the uses mentioned in the first sentence.
(See Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 194 [court
may not insert limiting language under guise of interpretation].) Rather, it
provided as an example of what was subject to the Term of Use a topic likely
to be of concern to a user of software to receive data from a continuous
glucose monitoring device, namely, collection and sharing of “sensitive health
information.”
The Legal webpage is unlike the website at issue in Sgouros, supra,
817 F.3d 1029, on which the majority relies. The website in that case
contained a Service Agreement in a scroll window, and under that window
was an advisement that made no mention of the Service Agreement and told
the user that by clicking a button, which also did not mention the Service
11
Agreement, the user authorized the website operator to obtain the user’s
personal credit information. (Id. at pp. 1032–1033.) Here, by contrast, the
Legal page included the prominently displayed statement, “I agree to Terms
of Use,” with an embedded hyperlink to the Terms of Use, and placed next to
that statement a box the user had to tick to launch the G6 App. (Maj. opn.,
ante, pp. 6–7.) To borrow language from Sgouros, “A website might be able to
bind users to [Terms of Use] by placing . . . a clearly labeled hyperlink to
[them] next to an ‘I Accept’ button that unambiguously pertains to [them].”
(Sgouros, at p. 1036.) As I read Sgouros, it does not support the majority’s
conclusion that by ticking the box next to “I agree to Terms of Use,” the user
did not assent to all Terms of Use, including the arbitration provision.7
I disagree with the majority’s conclusion for two additional reasons.
First, it runs afoul of the rule that we should, if possible, interpret language
to give effect to a contract rather than to make it void. (Civ. Code, §§ 1643,
3541; Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 953–954;
Koenig v. Warner Unified School Dist. (2019) 41 Cal.App.5th 43, 55.) My
interpretation of the Legal webpage upholds the arbitration agreement; the
majority’s nullifies it. Second, the majority’s conclusion is contrary to the
7 I also do not think the other case on which the majority heavily relies,
Doe v. Massage Envy Franchising, LLC (2022) 87 Cal.App.5th 23 (see maj.
opn., ante, pp. 22–23), supports its conclusion. Although I perceive many
other significant differences between Doe and the cases before this court, two
suffice to explain why there was no contract formation in Doe but there was
in the cases before this court. In Doe, the “ ‘Terms of Use Agreement’ ” that
contained the arbitration clause “was never called out or identified” and “was
referenced in an inconspicuous hyperlink” at the end of another form. (Id. at
p. 34.) In the cases before this court, the user’s agreement to the Terms of
Use was mentioned in the first sentence of the Legal webpage, and the Terms
of Use were accessible by clicking a prominent hyperlink embedded in the
statement, “I agree to Terms of Use.”
12
strong public policy in favor of arbitration as an expeditious and cost-effective
form of dispute resolution. (See, e.g., Moncharsh v. Heily & Blase (1992)
3 Cal.4th 1, 9; McConnell v. Advantest America, Inc. (2023) 92 Cal.App.5th
596, 607.) In accordance with that policy, “ ‘any doubts regarding the validity
of an arbitration agreement are resolved in favor of arbitration.’ ” (Nguyen v.
Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 247; accord,
Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1266.) The
majority’s resolution of the purported ambiguity in the Legal webpage
against formation of arbitration agreements binding on plaintiffs is, in my
view, inconsistent with the policy in favor of arbitration and instead
manifests the judicial hostility to arbitration that federal and state laws
requiring enforcement of arbitration agreements were intended to overcome.
(See, e.g., Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 649;
Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1074.)
III
Having concluded Dexcom met its burden to prove the existence of an
arbitration agreement binding on each plaintiff, I must now address the sole
defense each raised against enforcement of the agreement in the trial court
and renews in this court, namely, the agreement is unconscionable. As I
explain below, the trial court correctly rejected that defense.
A
“A contract is unconscionable if one of the parties lacked a meaningful
choice in deciding whether to agree and the contract contains terms that are
unreasonably favorable to the other party.” (OTO, L.L.C. v. Kho (2019)
8 Cal.5th 111, 125 (OTO).) To prevail on an unconscionability defense, a
party must establish both a procedural element and a substantive element.
(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th
1383, 114.) “The procedural element addresses the circumstances of contract
negotiation and formation, focusing on oppression or surprise due to unequal
bargaining power. [Citations.] Substantive unconscionability pertains to the
fairness of an agreement’s actual terms and to assessments of whether they
are overly harsh or one-sided.” (Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 246.) Although both
elements must be present for a court to refuse to enforce a contract or
provision, “the more substantively oppressive the contract term, the less
evidence of procedural unconscionability is required to come to the conclusion
that the term is unenforceable, and vice versa.” (Armendariz, at p. 114.) The
party opposing enforcement of an arbitration agreement bears the burden to
prove it is unconscionable. (Engalla, supra, 15 Cal.4th at p. 972; Hasty v.
American Automobile Assn. etc. (2023) 98 Cal.App.5th 1041, 1054.)
B
Plaintiffs contend the arbitration provision in Dexcom’s Terms of Use is
procedurally unconscionable because they could neither negotiate nor reject
the provision and still use the G6 App. They claim they had no realistic
choice but to use the Dexcom G6 as prescribed by their doctors for
management of their serious and chronic illness (diabetes mellitus), and they
had no reason to suspect that following their doctors’ orders would require
them to arbitrate disputes with Dexcom. Plaintiffs contend they are like the
patient in Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345 (Wheeler)),
who the Court of Appeal held was not bound by a provision requiring
arbitration of medical malpractice claims contained in a form he signed to
gain admission to a hospital when the hospital had neither called the
provision to his attention nor explained it to him. I find these contentions
unpersuasive.
14
“A procedural unconscionability analysis ‘begins with an inquiry into
whether the contract is one of adhesion.’ ” (OTO, supra, 8 Cal.5th at p. 126.)
A contract of adhesion is a standardized contract prepared by the party with
superior bargaining power and offered to the other party on a take-it-or-
leave-it basis under such conditions that the other party cannot obtain the
desired product or service except by acquiescing in the standardized contract.
(Ibid.; Steven v. Fidelity & Casualty Co. (1962) 58 Cal.2d 862, 882.) Dexcom’s
admissions in its return to the order to show cause that the Terms of Use,
including the arbitration provision, are not negotiable and that it has a
unilateral right to change them “suffic[e] to establish some degree of
procedural unconscionability.” (Sanchez v. Valencia Holding Co., LLC (2015)
61 Cal.4th 899, 915; see Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519,
1534 [presentation of contract with standard provisions on “ ‘take it or leave
it basis’ ” established procedural unconscionability].)
Other aspects of procedural unconscionability are absent. Plaintiffs
presented to the trial court no evidence they had no way to monitor their
blood glucose levels other than by using the G6 App and accepting the
associated Terms of Use, and at oral argument in this court their counsel
conceded other glucose monitoring devices are available in the marketplace.
“The availability of alternative sources from which to obtain the desired
service defeats any claim of oppression, because the consumer has a
meaningful choice.” (Belton v. Comcast Cable Holdings, LLC (2007)
151 Cal.App.4th 1224, 1245; see George v. eBay, Inc. (2021) 71 Cal.App.5th
620, 632 [discussing cases that rejected unconscionability claims when
claimant did not lack market alternatives].) The arbitration provision is also
lacking in surprise. Arbitration has for decades been such a common means
of dispute resolution that inclusion of an arbitration provision in a consumer
15
contract cannot fairly be said to defeat the reasonable expectations of
consumers. (See, e.g., Smith v. GC Services Ltd. Partnership (7th Cir. 2018)
907 F.3d 495, 500 [arbitration provisions in credit card agreements are
“commonplace”]; Spain v. Johnson (D.Colo. 2024) ___ F.Supp.3d ___, ___
[2024 WL 907435, p. *3] [“the use of arbitration is common and not
unreasonable”]; Patterson v. ITT Consumer Financial Corp. (1993)
14 Cal.App.4th 1659, 1665 [“arbitration per se may be within the reasonable
expectation of most consumers”].) The existence of the arbitration provision
in Dexcom’s Terms of Use was called to plaintiffs’ attention in all capital
letters on the first or second page of the printed version, and the provision
itself was set out several pages later as a separate section in plain language
and in all capital letters. (See maj. opn., ante, pp. 8–9 & fns. 2 & 3.) The
degree of procedural unconscionability is therefore minimal.
Plaintiffs’ emphasis on their status as “patients” does not increase the
degree of procedural unconscionability. Plaintiffs received no diagnostic or
therapeutic services from Dexcom and so were not its patients. They used a
software application (the G6 App) that Dexcom made available to them so
that they could track their blood glucose levels in real time on personal
mobile devices. Plaintiffs’ consenting to the Terms of Use as part of the
initial launch of the G6 App, presumably at their convenience and from the
comfort of their home or office, is unlike a patient’s signing a form to gain
admission to a hospital for a necessary medical procedure. Nothing in the
record suggests in launching the G6 App any plaintiff suffered “the stress,
anxiety, and urgency which ordinarily beset a patient seeking hospital
admission.” (Wheeler, supra, 63 Cal.App.3d at p. 366.) And although a
patient admitted to a hospital in 1971 reasonably might not have expected
the admission form to contain a provision for arbitration of medical
16
malpractice claims (id. at pp. 349, 360–361), that is no longer true. Since
that time and with legislative encouragement, arbitration has become a
common method of resolving medical malpractice claims. (See Code Civ.
Proc., § 1295, enacted by Stats. 1975, ch. 1, § 26.6 [medical services contract
provisions for arbitration of professional negligence disputes are enforceable
if they comply with notice requirements]; Reigelsperger v. Siller (2007)
40 Cal.4th 574, 578 [“The purpose of section 1295 is to encourage and
facilitate arbitration of medical malpractice disputes.”]; Madden v. Kaiser
Foundation Hospitals (1976) 17 Cal.3d 699, 714 [“arbitration has become a
proper and usual means of resolving civil disputes, including disputes
relating to medical malpractice”].) Wheeler thus does not support plaintiffs’
contention that, because they are “patients,” the arbitration provision in
Dexcom’s Terms of Use exceeds their reasonable expectations.
C
Having shown only a minimal degree of procedural unconscionability,
plaintiffs must show a high degree of substantive unconscionability to prevail
on their unconscionability defense. (Swain v. LaserAway Medical Group, Inc.
(2020) 57 Cal.App.5th 59, 75; Parada v. Superior Court (2009) 176
Cal.App.4th 1554, 1584–1585.) In an attempt to do so, they argue the
arbitration provision is substantively unconscionable because Dexcom’s
Terms of Use disclaim all warranties and preclude liability for punitive
damages. That attempt fails.
The provisions of the Terms of Use to which plaintiffs object are located
outside the arbitration provision. Plaintiffs do not explain how those
provisions make the arbitration provision itself substantively unconscionable.
An arbitration provision is severable from the rest of the contract if the
contract affects interstate commerce and is thus subject to the Federal
17
Arbitration Act (FAA; 9 U.S.C. § 1 et seq.). (Buckeye Check Cashing, Inc. v.
Cardegna (2006) 546 U.S. 440, 445; Allied-Bruce Terminix Cos. v. Dobson
(1995) 513 U.S. 265, 273–274.) The FAA covers contracts, such as Dexcom’s
Terms of Use, that are formed over the Internet and govern services provided
over the Internet. (U.S. v. Sutcliffe (9th Cir. 2007) 505 F.3d 944, 953
[Internet is instrumentality and channel of interstate commerce]; S.S. by and
through Stern v. Peloton Interactive (S.D.Cal. 2021) 566 F.Supp.3d 1019, 1042
[FAA applies to terms of service for use of app and website that require
Internet use].) Where, as here, the arbitration provision is severable, a
challenge to other provisions of the contract, “without a focused challenge to
the arbitration provision, does not preclude arbitration. [Citation.] The basis
of the challenge must be ‘directed specifically to the agreement to arbitrate
before the court will intervene.’ ” (Phillips v. Sprint PCS (2012) 209
Cal.App.4th 758, 774.) Plaintiffs’ challenge to the warranty disclaimers and
damages limitations is for the arbitrator to decide. (Buckeye, at p. 449;
Phillips, at p. 774.) They have not established the substantive
unconscionability element essential to their defense. (See OTO, supra,
8 Cal.5th at p. 125 [“Both procedural and substantive unconscionability must
be shown for the defense to be established”].)
IV
In sum, I conclude that in granting the motions to compel arbitration
the trial court ruled correctly on the issues presented to it. I believe we
should confine the scope of our review to those issues. The majority,
however, grants writ relief based on a contract formation issue no party ever
raised. I dissent from the majority’s decision to reach that issue and from its
decision on the merits of the issue. I would deny the petitions.
18
IRION, Acting P. J.
19