Carrasco vs. Disney Destinations, LLC

The petitioner bears the initial burden of producing prima facie evidence of a written agreement to arbitrate the controversy, which can be satisfied either by setting forth the agreement’s provisions in the motion or by attaching to the motion a copy of the arbitration agreement purporting to bear the opposing party’s signature; “[f]or this step, it is not necessary to follow normal procedures of document authentication.” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165, internal quotes omitted, emphasis added; see also Cal. Rules of Court [CRC], rule 3.1330 [requiring same].)

The burden then shifts to the opposing party to produce evidence to challenge the authenticity of the agreement. (Gamboa, supra, 72 Cal.App.5th at p. 165.) “If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties.” (Id. at pp. 166-167.) As part of this third step, the moving party may file supplemental evidence upon a challenge by the opposing party as to the existence of the agreement, and it is timely to do so on reply. (Espejo v.

Southern Cal. Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1056-1060 [“Because defendants were not required to establish the authenticity of [plaintiff’s] signature on the [agreement] until challenged by [plaintiff] in his opposition, they were not required to file the supplemental declaration pursuant to the deadline set by section 1005, subdivision 9b) for a party’s moving papers”].)

The petitioner must satisfy their burden “by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842, internal citations omitted.)

Here, Defendants satisfied their initial burden of producing prima facie evidence of the alleged arbitration agreement. Defendants submitted the declaration of their employee Fiske, who has been employed with Disney since 2014, and who attested that she has “personal knowledge of the process that guests must complete and the agreements they enter into in order to renew a Magic Key Pass.” (ROA #54 [Fiske Decl.], ¶ 5; see also Forest Lawn Memorial-Park Assn. v. Super. Ct. (2021) 70 Cal.App.5th 1, 11 [“We stress that the required foundation for personal knowledge is not high.

It is well below what is necessary for a determination by the court that a statement is credible.”]; Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 983 [declarant’s background and experience sufficient to establish personal knowledge].) Fiske explained that at the time Plaintiffs purchased a Magic Key Pass renewal in December 2022, all guests—including Plaintiffs—were required to do so online by logging into their MyDisney account and clicking through various screens. (Id. at ¶¶ 6-10.)

Attached to Fiske’s declaration were examples of the screens guests would have encountered, including a partial portion of the relevant Magic Key Terms and Conditions that includes the alleged arbitration agreement. (Id. at Exhs. A-B.) Defendant’s moving memorandum of points and authorities also cited to Exhibit E of Plaintiffs’ own complaint for a full copy of the Magic Key Terms and Conditions, including the alleged arbitration agreement. (ROA #56 [Mot. P&A], pp. 9-11; see also Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 [even on summary judgment, “a party can rely on his adversary’s pleadings to establish facts not contained in his own affidavits”].)

The burden thus shifted to Plaintiffs to challenge the authenticity of the agreement. Plaintiffs did not satisfy their burden. Plaintiffs’ own declarations admitted that they purchased their renewals “through the Disneyland website,” and “[d]uring the checkout process, [they] recall [they were] required to check a few boxes.” (ROA #89 [R. Carrasco Decl.], ¶¶ 2, 4; ROA #91 [A. Carrasco Decl.], ¶¶ 2, 4.) These attestations corroborate Defendants’ evidence. Plaintiffs do not deny having to scroll through the scroll box containing the Magic Key Terms and Conditions to reach the check box that reads: “I have read and agree to the Disneyland Resort Magic Key Terms and Conditions, including the Magic Key Binding Arbitration Agreement and Class Waiver.” (See Fiske Decl., ¶ 10, Exh.

B.) Nor do Plaintiffs deny that they checked this box. Thus, the Court finds that Plaintiffs did in fact check the box affirming they read and agreed to the Magic Key Terms and Conditions, including the alleged arbitration agreement.

At most, Plaintiffs claim that they “do not recall seeing anything referencing arbitration.” (R. Carrasco Decl., ¶¶ 3-4; A. Carrasco Decl., ¶¶ 3-4.) Plaintiffs’ opposition argues that Defendants failed to present the applicable terms and conditions in a clear and conspicuous manner such that “a reasonable offeree would be on inquiry notice of the terms at issue” because of “(1) the location and descriptions of the text directing Plaintiffs and Consumers to the Magic Key T&C, (2) the scattered blue text hyperlinks to multiple different terms or information not related to the Magic Key T&C, and (3) the multiple incorporated terms and conditions that contain contradictory contract terms and conditions.” (Opp. at pp. 7- 9.)

These arguments fail, however, because ultimately Defendants used a scrollwrap agreement in which “the user is presented with the entire agreement and must physically scroll to the bottom of it to find the ‘I agree’ or ‘I accept’ button.” (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 463-464.) Because “[s]crollwrap agreements . . . place the contractual terms directly in front of the user, requiring them to scroll through the terms before checking ab ox or clicking a button to indicate their assent,” scrollwrap agreements are “consistently found to be enforceable,” and “there should be little doubt scrollwrap agreements are enforceable under California law because the consumer is given the contract, a sufficient circumstance to place the consumer on inquiry notice of the contractual terms.” (Id. at pp. 470.)

Here, right above the checkbox for “I have read and agree to the Disneyland Resort Magic Key Terms and Conditions, including the Magic Key Binding Arbitration Agreement and Class Waiver,” Defendants provided the entire text of the agreement, which Plaintiffs had to scroll through before seeing and being able to click the checkbox. Under these circumstances, the Court finds unavailing Plaintiffs’ contention that “it would be impossible for a reasonable consumer to ‘ferret’ out what terms they are actually agreeing to even if they did check the ‘agree’ box.” (Opp. at p. 9.)

Moreover, even within the Magic Key Terms and Conditions that renewing guests like Plaintiffs had to scroll through, the arbitration agreement was explicitly called out with bolded capital letters, including a bolded and capitalized heading, followed by an entire initial paragraph of bolded and capitalized text describing the basic terms of the arbitration agreement. (ROA 2 [Compl.], Exh. E; see also ROA #107 [Fiske Supp. Decl.], Exh. C.) The arbitration provision is the only provision within the Magic Key Terms and Conditions that is set out this way. (Id.)

Additionally, the very first paragraph of the Magic Key Terms and Conditions—also set forth in bolded capitalized letters, plus underlining— calls out the arbitration agreement contained therein. (Id.) Even the statement accompanying the “agree” checkbox calls out the arbitration agreement contained in the Magic Key Terms and Conditions. Therefore, the arbitration provision was not inconspicuous.

Finally, Plaintiffs contend that the arbitration agreement contained within the Magic Key Terms and Conditions was “superseded” by the Retail Installment Contract (“RIC”) that Plaintiffs also entered into with Defendants as part of renewing their Magic Key passes, which provides that “[a]ny dispute or legal action between you and us rising out of or in connection with this Contract shall be commenced and maintained exclusively in the California Superior Court in and for Orange County . . . .” (Opp. at pp. 9-10, quoting Compl., Exhs. A-B.) This argument also lacks merit for several reasons.

First, the second paragraph of the Magic Key Terms and Conditions explicitly identifies the RIC as among the “other applicable terms, conditions, or agreements” to which Plaintiffs would be subject by purchasing a renewal pass, and that paragraph also explicitly states: “In the event of any conflict between those other applicable terms and conditions and these Disneyland Resort Magic Key Terms and Conditions (or ‘Magic Key Terms and Conditions’), including with respect to the Magic Key Binding Arbitration Agreement and Class Action Waiver below, the Magic Key Terms and Conditions govern.” (Compl., Exh. E; Fiske Supp. Decl., Exh. C.)

Second, Plaintiffs rely on the RIC’s statement that “[a]ll prior agreements and representations concerning this subject matter are superseded” to contend that the RIC nevertheless supersedes the Magic Key Terms and Conditions. (Opp. at p. 9, citing RIC’s “Miscellaneous” section, emphasis added.) However, the subject matter of the RIC relates to the payment plan and financing agreement that Plaintiffs entered into with Defendants to fund the purchase of their renewed passes. Here, Plaintiffs are not suing under the RIC because their claims in this case have nothing to do with this payment plan and financing agreement.

Therefore, even if the RIC supersedes the Magic Key Terms and Conditions despite the Magic Key Terms and Conditions stating that they govern in the event of a conflict with the RIC, the RIC would only supersede the Magic Key Terms and Conditions as they relate to a payment plan and financing agreement to fund the purchase of the renewed pass.

Therefore, the Court finds that the arbitration agreement set forth in the Magic Key Terms and Conditions exists between the parties.

FAA Governs Plaintiffs contend that “[w]ithout first establishing a valid contract exists between Plaintiffs and Defendants . . ., Defendants summarily declare the ‘FAA governs[‘]” but “have failed to prove that the FAA is applicable to this transaction.” (Opp. at p. 2.) This argument also lacks merit.

As explained above, the Court has found that a valid arbitration agreement does exist between Plaintiffs and Defendants. The agreement itself specifies that “the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs its interpretation and enforcement.” (Compl., Exh. E; Fiske Supp. Decl., Exh. C.) This is a commonly acceptable and enforceable provision in an arbitration agreement. (See Volt Information Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468, 479 [“parties are generally free to structure their arbitration agreements as they see fit,” including by agreement to arbitration under the FAA]; Barrera v. Apple v. American Group LLC (2023) 95 Cal.App.5th 63, 76 [“since arbitration is a matter of contract, the FAA also applies if it is so stated in the agreement”].)

Therefore, the FAA governs the arbitration agreement’s interpretation and enforceability.

Delegation Clause “Parties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 241.) Thus, “delegation clauses are essentially severable mini-agreements within agreements to arbitrate.” (Holley-Gallegly v. TA Operating, LLC (2023) 74 F.4th 997, 1001, citing Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70-73.) Thus, “the court must decide the validity of the delegation clause before considering the validity of the rest of the arbitration agreement.” (Tiri, supra, 226 Cal.App.4th at p. 241, fn. 3.)

“There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.” (Id., citing Rent-A-Center, supra, 561 U.S. at 68-69, 70, fn. 1.)

Here, the parties’ arbitration agreement clearly and unmistakably states: “The arbitrator will have the exclusive authority to resolve any dispute relating to the formation, interpretation, applicability, or enforceability of these terms and conditions including this binding arbitration provision, including the arbitrability of any dispute and any claim that all or any part of this binding arbitration provision is void or voidable.” (Compl., Exh. E; Fiske Supp. Decl., Exh. C.)

Plaintiffs contend that the parties have not clearly and unmistakably delegated issues of enforceability exclusively to the arbitrator because the “provision []points in two directions on a question whether a court or an arbitrator is to decide enforceability” in that the above-quoted provision is followed by two other provisions that provide exceptions for when parties may go to court. (Opp. at p. 11.) First, immediately after the abovequoted delegation clause is the following sentence: “However, if either party believes that any claim that was filed in arbitration or in court is inconsistent with this agreement’s waiver of the right to litigate or arbitrate any claims as a class action or other representative or collective action, then you and Disney agree that either party may seek an order from a court determining whether such a claim is within the scope of that waiver.” (Compl., Exh.

E; Fiske Supp. Decl., Exh. C.) Second, two paragraphs later, the arbitration agreement states: “You or Disney may assert claims in small claims court instead of in arbitration if the claims qualify.” (Id.)

This argument lacks merit. An arbitration agreement may “expressly carves out . . . classes of claims that remain subject to litigation in court,” and “the fact that the [agreement] contemplates that courts may, on occasion, be called upon to construe various provisions of the policy does not undermine the policy’s otherwise clear and unmistakable delegation of gateway issues to the arbitrator on claims subject to arbitration.” (B.D. v. Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 959.)

Moreover, the only case Plaintiffs rely on for their argument is Jack v. Ring LLC (2023) 91 Cal.App.5th 1186. However, the facts in Jack are distinguishable from the instant case. In Jack, the arbitration agreement contained a broad delegation clause similar to the one here, but the Jack agreement did not contain any clear or explicit exceptions like the followon sentence about courts deciding the scope of class or representative action waivers or the later sentence about courts deciding small claims. (See id. at p. 1193.)

Instead, in a separate section waiving rights to bring representative actions, the Jack arbitration agreement simply stated: “If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.” (Id. at p. 1194, emphasis original.) Since the delegation clause in Jack did not explicitly contain any exceptions, the court found the agreement’s sudden, later acknowledgment of the possibility that a court may decide enforceability issues to constitute an inconsistency that rendered the delegation clause not clear or unmistakable. (Id. at p. 1199.)

Here, in contrast, the delegation clause clearly and unmistakably delegates to the arbitrator all enforceability issues. It also provides that parties may seek an order from a court to determine whether a particular claim falls within the scope of the parties’ class and representative action waiver. The agreement further provides that the parties may assert claims in small claims court. Neither of these carve-outs create any ambiguity as to whether the arbitrator would decide enforceability of the parties’ agreement. (See B.D., supra, at p. 959.)

Thus, the Court finds that the delegation clause is clear and unmistakable, and it delegates enforceability issues to the arbitrator. The Court must therefore enforce the delegation clause unless it is revocable under state contract defenses such as fraud, duress, or unconscionability.

Here, Plaintiffs’ opposition makes no arguments about fraud or duress. But Plaintiffs do contend that the arbitration agreement is unenforceable because it is unconscionable. (Opp. at pp. 12-15.) However, unconscionability challenges to the enforceability of a delegation clause must be directed at the delegation provision specifically, not at the arbitration agreement as a whole. (Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 72-75.) While a party may cite provisions outside the delegation clause in making an unconscionability challenge to the delegation clause, the party “must explain how those provisions make the fact of an arbitrator deciding [enforceability] unconscionable.” (Holley- Gallegly, supra, 74 F.4th at p. 1002, emphasis original, citing Rent-A- Center, supra, 561 U.S. at p. 74; see also Tiri, supra, 226 Cal.App.4th at p. 243, emphasis original [“any claim of unconscionability must be specific to the delegation clause”].)

Since none of Plaintiffs’ arguments about unconscionability is “specific to the delegation provision,” the Court “need not consider” these unconscionability challenges. (Rent-A-Center, supra, 561 U.S. at p. 73.) Instead, such issues go to the enforceability of the arbitration agreement, which is an issue delegated to the arbitrator by the parties’ agreement.

In sum, the Court finds that (1) an arbitration agreement exists between the parties; (2) the agreement includes a clear, unmistakable, and enforceable delegation clause delegating to the arbitrator “any dispute relating to the formation, interpretation, applicability, or enforceability of these terms and conditions including this binding arbitration provision, including the arbitrability of any dispute and any claim that all or any part of this binding arbitration provision is void or voidable.”

Accordingly, Plaintiffs are ORDERED to arbitrate their individual claims against Defendants in accordance with the parties’ arbitration agreement.

This case is STAYED pending completion of the ordered arbitration pursuant to Code of Civil Procedure section 1281.4.

An ADR review hearing is scheduled for June, 3 2027 at 9:30AM in Department CX102. The parties shall submit a joint status report 10 days in advance of the hearing.

Defendants shall give notice of this ruling. 106 Doe vs. AN SCPB, LLC

2025-01454918 1. Motion to Compel Arbitration 2. Case Management Conference

Defendants AN SCPB, LLC and Elizabeth An’s Motion to Strike Plaintiff’s Class Action Allegations, to Compel Arbitration of Plaintiff’s PAGA Individual Claim, and Stay the PAGA Representative Action Pending Arbitration is DENIED.

As an initial matter, the Court notes that Defendants do not move to compel arbitration of any of Plaintiff John Doe’s claims alleged in the third amended complaint (TAC) other than his individual PAGA claim in the 17th cause of action. Presumably, Defendants do not move to compel arbitration of the other 16 causes of action in the TAC because Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”) provides, in relevant part, that “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, . . . no predispute arbitration agreement . . . shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” (9 U.S.C. § 402, subd. (a).)

California caselaw is clear that “[t]he statute’s plain language makes clear that the exemption applies to the case, not individual claims, where a plaintiff alleges conduct constituting sexual harassment or sexual assault,” and thus, “it is no surprise that every published California decision to address this issue has concluded that, once properly invoked, the EFAA renders an arbitration agreement unenforceable as to the entire case, not merely the sexual harassment claim.” (Quilala v. Securitas Security Services USA, Inc. (2025) 17 Cal.App.5th 75, 88-89, citing Casey v.

Super. Ct. (2025) 108 Cal.App.5th 575, 588, Liu v. Miniso Depot CA, Inc. (2024) 105 Cal.App.5th 791, 796; and Doe v. Second Street Corp. (2024) 105 Cal.App.5th 552, 577 [“Second Street”].)

Defendants do not explain why Plaintiff’s individual PAGA claim should be treated differently than his other individual claims alleged in the other 16 cause of action—i.e., why Plaintiff’s individual PAGA claim is not also part of the same “case” that “relates to . . . the sexual harassment dispute” such that the EFAA applies to render the parties’ alleged arbitration agreement and representative action waiver unenforceable. When a