Chao Xu v. Booking.com (USA) Inc., et al.

Defendant now moves to compel arbitration of these claims under the Arbitration Agreement (“the Agreement”) provided in their Terms and Conditions.

PLAINTIFF’S EVIDENTIARY OBJECTIONS

Plaintiff submits evidentiary objections to the Declaration of Jonathan Black. The Court rules on each objection as follows:

Objection Number 1 is OVERRULED. Jonthan Black (“Mr. Black”) states he has personal knowledge of the facts set forth based on his position as Senior Managing Counsel – Legal & Compliance for USA and Canada. He states that he is “one of the custodians of the business records of Bookings.com” and is familiar with the manner in which records are created. Moreover, “[f]or purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of authentication.” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.Ap.5th 158, 165-166.)

Objection Number 2 is SUSTAINED for lack of relevance and speculation. The representative booking page concerns a different booking than the one at issue in the Complaint and is not evidence of what Plaintiff actually saw.

Objection Number 3 is OVERRULED for the same reasons stated above. In addition, “the custodian of a document need not have been present or employed when the document was created or signed to authenticate a document in a company’s files.” (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 758-759.)

Objection Number 4 is OVERRULED. The Declaration of Jonathan Black provides that “[t]he business records attached hereto as Exhibits 1, 2, 3 are true and correct copies of records kept by Booking.com B.V. in the regular course of business and it was the regular practice of Booking.com B.V. for an employee or representative of Booking.com B.V., with knowledge of the act, event, condition, opinion or diagnosis that was recorded to make these records or to transmit the information to be included in these records. These records were made at or near the time or reasonably soon after the act, event, condition, opinion or diagnosis that was recorded, and were made by, or from information transmitted by an employee or representative of Booking.com B.V. with knowledge of the act, event, condition, opinion, or diagnosis.”

Objection Numbers 5 and 6 are OVERRULED for the reasons stated above. Defendant makes clear that Exhibit 1 is not a reconstruction but contains information specific to Plaintiff’s transaction. Defendant states “Exhibit 1 is a true and correct copy of the booking details page displayed to Plaintiff after they completed the flight booking transaction through www.booking.com website.” (Black Decl. at p. 2:23-24.)

Objection Number 7 is SUSTAINED for speculation as Exhibit 2 depicts what Plaintiff would have seen versus what he actually saw at the time of the transaction at issue. Defendant states Exhibit 2 is a “representative booking page Plaintiff would have utilized showing the required acknowledgment to complete the transaction, along with the related modals that appear when clicking the ‘terms and conditions and privacy

policies’ and ‘fare rules’ hyperlinks displayed on the booking page.” (Black Decl. at p. 3:19-22.)

Objection Number 8 is OVERRULED for the reasons stated above.

DEFENDANT’S EVIDENTIARY OBJECTIONS

Defendant objects to the Declaration of Chao Xu. Objection Numbers 1 through 4 are SUSTAINED for lack of relevance. The booking described by Plaintiff concerns a different booking than the one at issue in the Complaint. Additionally, Plaintiff’s video is hearsay without exception.

Defendant objects to the video evidence in support of the Opposition. Objection Numbers 1 through 9 are SUSTAINED for lack of relevance. The bookings depicted by each declarant concern a different booking than the one at issue in the Complaint.

LEGAL STANDARD

Defendant argues that the Federal Arbitration Act (“FAA”) governs the Arbitration Agreement based on the language itself and because the Agreement affects interstate commerce. (Mtn. to Compel Arbitration at p. 7:16-22.) The Arbitration Agreement provides: “Booking.com and you agree that this arbitration agreement is evidence of a transaction in interstate commerce and will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state law.” (Black Decl., Ex. 3 at p.

BOUSA000014.) Under the FAA, the court’s role is limited to determining “(1) whether a valid agreement to arbitrate exists, and if it does (2) whether the agreement encompasses the dispute at issue.” (Chiron Corp. v. Ortho Diagnostic Systems, Inc. (9th Cir. 2000) 207 F.3d 1126, 1130.) To determine “whether a valid contract to arbitrate exists,” courts apply “ordinary state law principles that govern contract formation.” (Davis v. Nordstrom, Inc. (9th Cir. 2014) 755 F.3d 1089, 1093 [citations omitted]; see also Ingle v.

Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, 1170.)

Alternatively, the CAA governs the Arbitration Agreement. Code of Civil Procedure section 1281.2 provides:

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy in that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for rescission of the agreement . . . .

C.C.P. § 1281.2

In determining the threshold question of whether an arbitration agreement exists between the parties, the court employs a three-step burden shifting analysis. (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755 (Iyere); see also Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060.) The party seeking to compel arbitration bears the initial burden of showing an agreement to arbitrate. If that burden is met, the burden shifts to the opposing party to show a factual dispute regarding the agreement’s existence. If the opposing party does so, then the burden shifts back to the proponent of arbitration to show the existence of a valid agreement by a preponderance of the evidence. (Iyere, supra, 87 Cal.App.5th at p. 755.)

ANALYSIS

I. There is a Valid Arbitration Agreement between these parties.

At issue is whether a valid agreement to arbitrate exists that both parties have assented to. “While Internet commerce has exposed courts to many new situations, it has not fundamentally changed the requirement that “ ‘mutual manifestation of assent, whether by written or spoken word or by conduct, is the touchstone of contract.’” (Nguyen v. Barnes & Noble, Inc. (2016) 245 Cal.App.4th 855, 862 (Nguyen). Mutual assent is determined under an objective standard applied to the outward expressions of the parties, with due regard for context. (See Ibid.) “California law is clear—‘an offeree regardless of apparent manifestation of his consent is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious.’ [Citation.]” (Ibid.)

Courts have distinguished between “two flavors” of Internet contracts: “ ‘ “clickwrap” (or “click-through”) agreements, in which website users are required to click on an “I agree” box after being presented with a list of terms and conditions of use; and “browsewrap” agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen.’” (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 862 [quoting Nguyen v. Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1175-1176].) “Some internet contracts are a blend of the two, and have been called a ‘hybrid design,’ ‘modified clickwrap’, or ‘sign-in wrap’ agreement. ‘Sign-in-wrap’ agreements are those in which a user signs up to use an internet product or service, and the signup screen states that acceptance of a separate agreement is required before the user can access the service.” (Colgate v.

Juul Labs, Inc. (N.D. Cal. 2019) 402 F.Supp.3d 728, 763.)

Defendant describes a hybrid clickwrap agreement. Defendant provides that when booking a flight on the platform, the customer agrees to the Terms and Conditions by clicking the “Pay now” button. (Black Decl. at pp. 2:27-3:1.) The transaction cannot be completed without agreeing to the Terms and Conditions. (Id. at p. 3:1-2.) After completion, the booking page expressly states “[w]hen you made this booking, you agreed to Booking.com’s terms and conditions, Booking.com’s privacy policies, Gotogate.Inc.’s terms and conditions, Gotogate, Inc.’s privacy policies, and Juneyao Airlines. You also acknowledged and agreed to this flight’s fare rules.” (Id. at p. 3:4-6, Ex. 1.) Defendant maintains a similar disclaimer with the same hyperlinks to the Terms

and Conditions is displayed before completion on the booking page. (Id. at p. 3:7-9.) Thus, prior to completing the transaction, Plaintiff had opportunity to review the hyperlinked Terms and Conditions. (Id. at p. 3:10-12.) The same terms are also accessible via the footer of the homepage prior to use of the reservation system. (Id. at p. 3:16-17.) Defendant argues Plaintiff here clicked the “Pay now” button beneath the acknowledgment and hyperlink, and thus, affirmatively accepted the Terms and Conditions including the Arbitration Agreement contained therein. (Id. at p. 3:17-19.)

Plaintiff argues that Defendant’s representative booking page is not reflective of the typical Booking.com experience. (Opposition at p. 4:9-10.) Plaintiff argues the desktop-browser interface is different from the mobile booking flow where most customers transact. (Id. at p. 11-17.) Plaintiff argues that he did not see any link to the Booking.com Terms and Conditions when booking the flight at issue. (Declaration of Chao Xu [“Xu Decl.”] at ¶ 6.) Plaintiff performed a demonstrative flight booking using both the mobile app and desktop interface and generated representative booking pages that also did not include “any link to any Terms and Conditions for Booking.com or any similar disclosures.” (Xu Decl. at ¶¶ 28. 46.) Plaintiff also maintains he did not see a “Pay now” button using either interface. (Id. at ¶¶ 29, 47.)

Plaintiff submits six sworn declarations in addition to his own from third party witnesses who performed the same demonstrative flight booking and generated representative booking pages. (Declaration of Bruce Chu [“Chu Decl.”]. Declaration of Fan Chen, Declaration of Hang Sheng, Declaration of Hanyu Zhang [“Zhang Decl”], Declaration of Sheng Yang [“Yang Decl.”], Declaration of Yi Yang.) Only one declarant, Bruce Chu, stated that the webpage included a disclaimer that stated: “By clicking ‘pay now’ you agree with the terms and conditions and privacy policies [hyperlink] of Booking.com, Gotogate, Inc., Spirit Airlines, and with the fare rules [hyperlink].” (Chu Decl. at ¶ 17.)

He goes onto state “[a]fter the fine print appeared, the ‘Pay now’ button automatically entered a loading state. I did not touch my phone or interact with the ‘Pay now’ button in any way after approving the Google Pay transaction.” (Id. at ¶ 19.) The remaining declarants saw a “Pay now” button but did not see any link to the Terms and Conditions or any similar disclosures. (See, e.g., Yang Decl. at ¶ 17.)

But despite these assertions in these declarations, the video evidence submitted by Plaintiff proves that it is inconclusive as to whether a disclaimer was provided or not. The video evidence of the demonstrative flight booking is difficult to read in some instances as the reservation is made from a distance with the font too small to discern. (See, e.g. Xu Decl., Ex. A [performing demonstrative flight booking on desktop; Declaration of Yi Yang, Ex. A [performing demonstrative flight booking on mobile].)

Furthermore, it is unclear whether the declarants scrolled down far enough on both their mobile and desktop screens to determine whether the disclaimer was provided alongside the “Pay now” button. (See, e.g., Xu Decl., Ex A; Zhang Decl., Ex. A.) Additionally, as Defendant argues on Reply and within its objections, the videos were made 11 to 18 months after the transaction at issue occurred on different devices and different browsers, concern different bookings than the one at issue, and are hearsay without exception. (Reply at pp. 4:7-13; 6:13-20.)

For these reasons, Plaintiff has failed to meet his burden of challenging the authenticity of the agreement. Based on the

Declaration of Jonathan Black, it is more likely than not that the disclaimer was placed alongside the “Pay now” button such that Plaintiff would have assented to it. Thus, a valid agreement to arbitrate exists between the parties as clickwrap agreements are generally enforceable. (See Disney Enters. v. Redbox Automated Retail, LLC (C.D. Cal. 2018) 336 F.Supp. 3d 1146, 1153; In re Facebook Biometric Info. Privacy Litig. (N.D. Cal. 2016) 185 F.Supp. 3d 115, 165.) In fact, courts have consistently enforced modified clickwrap agreements less conspicuous than those at issue here. (See Lee v. Ticketmaster L.L.C. (9th Cir. 2008) 817 F.App’x 393, 394-395; Dohrmann v. Inuit, Inc. (9th Cir. 2020) 823 F.App’x 482, 484.)

Accordingly, the Court finds and rules that the Arbitration Agreement is valid and enforceable between these parties.

II. The Scope of the Arbitration Agreement Covers Plaintiff’s Claims

Plaintiff’s claims fall within the broad scope of the Arbitration Agreement. The Arbitration Agreement provides:

By using this Platform, you agree that any and all Claims (as defined below) arising out of or relating to your use of this Platform, or other services provided by Booking.com or by the support companies in connection with your use of this Platform (including the interpretation and scope of this arbitration agreement and the arbitrability of the dispute), . . . will be resolved via mandatory, binding arbitration.” (Black Decl., Ex. 3 at p. BOUSA000014.)

Plaintiff’s claims stem from the flight reservations he booked through the Booking.Com platform. Plaintiff alleges his flight had been cancelled due to a reservation error caused by a technical issue. (Complaint at ¶ 21.) Plaintiff has only received a refund of $30.88 from Defendant to date. (Id. at ¶ 28.) Plaintiff seeks restitution as part of his prayer for relief. (Id.: Prayer for Relief at ¶ 84(a).) Moreover, though Defendant is a non-party to Plaintiff’s transaction, it may move to compel arbitration as a support company or third-party beneficiary. (See, Ronay Family Limited Partnership v.

Tweed (2013) 216 Cal.App.4th 830, 839 [finding that Tweed and TFI made a “prima facie showing sufficient to allow them to enforce the arbitration clause as third party beneficiaries” because the agreement expressly required arbitration of claims against CapWest’s agents and registered representatives].)

Accordingly, as Plaintiff’s claims arise out of his use of the Platform, they are covered by the broad scope of the Arbitration Agreement.

III. The Arbitration Agreement is Not Unconscionable

“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).

Unconscionability has both procedural and substantive elements. (Armendariz Foundation Health Psychcare Services, Inc. (200) 24 Cal.4th 83, 114 (Armendariz); Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1539 (Jones). Both must appear for a court to invalidate a contract or one of its individual terms. (Armendariz, supra, 24 Cal.4th at p. 114; Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 174.) But they need not be present in the same degree: “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the terms is unenforceable, and vice versa.” (Armendariz, supra, 24 Cal.4th at p. 114.)

A. There is no procedural unconscionability here. “Procedural unconscionability focuses on the elements of oppression and surprise.” (Armendariz, supra, 24 Cal.4th at p. 114.) “Oppression arises from an inequality of bargaining power which results in no real negotiation and an absence of meaningful choice,” while [s]urprise involves the extent to which the terms of the bargain are hidden in a prolix printed form drafted by a part in a superior bargaining position.” (Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 671 (Davis) [internal citation and quotation marks omitted].) Adhesive contracts have been described as follows: “An adhesive contract is standardized, generally on a preprinted form, and offered by the part with superior bargaining power on a take-it-or-leave-it basis. [Citations].” (OTO, supra, 8 Cal.5th at p. 126.)

Plaintiff argues that the Arbitration Agreement in effect at the time of Plaintiff’s transaction is buried within the Terms and Conditions. (See Black Decl., Ex. 3 at p. BOUSA000013.) The Arbitration Agreement is found in paragraph 19 of the Terms and Conditions as set forth in the Table of Contents in blue and bold font. (Id. at p. BOUSA000002.) The provisions themselves within the Arbitration Agreement are easily seen and legible in bold font.

While Plaintiff argues that “[t]o find it, a user would have to (a) navigate the document in the first place, (b) scroll past eighteen prior sections of unrelated content, and (c) read through dense legal terms[,]” (Opposition at p. 12:10-12), the Court disagrees and finds that the Agreement is not filled with dense legal terms at all. For instance, the Agreement does not refer to particular statutes, administrative bodies, or specific types of motions. Hence, the Court sees no procedural unconscionability on this front. (See cf. OTO, supra, 8 Cal.5th at p. 128 [finding procedural unconscionability where the substance of the agreement was replete with statutory references and legal jargon].)

Moreover, Defendant points out that Section A2 of the Terms & Conditions upfront in the document clearly states: “[t]hese Terms include an agreement to mandatory, binding individual arbitration, which means that you agree to submit most disputes related to our Platform, the use of the services on our Platform, or these Terms, to binding arbitration rather than proceeding in court.” (Black Decl., Ex. 3 at p. BOUSA000002.) Thus, notice of arbitration is not buried within the Terms and Conditions, but set forth upfront at the outset of the document. And there’s nothing procedurally unconscionable about that.

Furthermore, the Agreement contains an opt-out provision whereby a party may opt out of the Agreement by sending written notice to Defendant within thirty days of “(a) the date you first used Booking.com’s Platform, (b) the date you first used Booking.com’s services, or (c) the date of your first transaction with Booking.com[,]” whichever is earliest. (Black Decl., Ex. 3 at pp. BOUSA000014-15.) “[A]n arbitration agreement is not adhesive if there is an opportunity to opt out of it.” (Mohamed v. Uber Technologies, Inc. (9th Cir. 2016) 848 F.3d 1201, 1211.) Again, nothing procedurally unconscionable there.

So after carefully reviewing and considering all these facts and circumstances, the Court rules that there is no procedural unconscionability here.

B. There is no substantive unconscionability here.

Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether they create overly harsh or one-sided results. (Armendariz, supra, 24 Cal.4th at p. 114.) The Court assesses whether the Agreement reallocates risks in an objectively unreasonable or unexpected matter. (Jones, supra, 112 Cal.App.4th at p. 1539.) “In assessing substantive unconscionability, the paramount consideration is mutuality.” (Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 241 [internal citation and quotation marks omitted].) Arbitration agreements are substantively unconscionable where they lack a “modicum of bilaterality,” “without at least some reasonable justification for such onesidedness based on ‘business realities.’” (Armendariz, supra, 24 Cal.4th at p. 117.)

Armendariz instructs that there are “five minimum requirements for the lawful arbitration of such rights pursuant to a mandatory employment arbitration agreement. Such an arbitration agreement is lawful if it ‘(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.’” (Armendariz, supra, 24 Cal.4th at p. 102.)

The Arbitration Agreement satisfies these factors, rendering it lawful. The Agreement provides for a neutral arbitrator selected by the American Arbitration Association (“AAA”). (Black Decl., Ex. 3 at p. BOUSA000015.) The Agreement further provides that the arbitration shall be conducted in accordance with the AAA Rules. (Id. at p. BOUSA000016.) In addition, Defendant agrees to pay “all filing, administration, and arbitrator fees, other than the initial filing fee to be paid by you, and if your Claim is for less than $1,000 Booking.com shall reimburse you for the filing fee upon written request for reimbursement with documentation of insufficient funds to pay the fee.” (Id. at p.

BOUSA000015.) The arbitrator is given the power to grant remedies including declaratory or injunctive relief. (Id. at p. BOUSA000017.) The Agreement does not prohibit Plaintiff from seeking public injunctive relief in court. (Ibid.) Hence, there is no substantive unconscionability here.

As there is neither procedural nor substantive unconscionability, the Agreement is not unconscionable and is enforceable between these parties. And as this enforceable Agreement’s arbitration clause covers Plaintiff’s claims,3 Defendant’s Motion to compel arbitration of Plaintiff’s claims must be GRANTED.

IV. This Civil Action is Stayed in its entirety pending completion of the arbitration.

A stay of these proceedings is eminently proper under to Code of Civil Procedure § 1281.4 and 9 U.S.C. § 3 until the completion of the arbitration.

To be sure, section 1281.4 does provide that “[i]f the controversy subject to arbitration is severable, the stay may be with respect to that issue only.” (Code Civ. Proc. § 1281.4.)(emphasis added). The term is may, not must. Likewise, with respect to 9 U.S.C. § 3, “the decision to stay the remaining nonarbitrable claims, is soundly vested in the court’s discretionary authority to control its docket.” (Benson Pump Co. v. S. Cent Pool Supply (2004) 325 F.Supp.3d 1152, 1160.)

As noted above,4 all six causes of action of Plaintiff’s Complaint are covered by the Arbitration Agreement with the sole exception that the injunctive relief that Plaintiff seeks in connection with the Sixth Cause of Action for unlawful and unfair business practices in violation of California Business & Professions Code § 17200, et seq. (the Unfair Competition Law or “UCL” claim) is not arbitrable because, as Defendant concedes, “the UCL claim for public injunctive relief can be severed, as the Terms and Conditions carved out the UCL public-injunctive relief.” (Reply at p. 10:7-8 [emphasis in original].)

Given that all Plaintiff’s claims are arbitrable except the UCL injunctive-relief claim, the Court above has ORDERED all Plaintiff’s claims except the UCL injunctiverelief claim to be arbitrated now. Yet regarding the scope of the accompanying stay of this civil action, while the Court recognizes that it has the discretion to carve out the UCL injunctive-relief claim from the stay, the Court in the sound exercise of its discretion declines to do so.

Instead, the Court under Code of Civil Procedure Section 1281.4 ORDERS that this entire civil action—including the UCL injunctive-relief claim—is STAYED now until this arbitration is complete. (C.C.P. § 1281.4; 9 U.S.C. § 3.) Staying the entire action now avoids the substantial risk of inconsistent rulings inherent in parallel proceedings, and thereby will advance rather than undermine the effectiveness and

3 There is one exception. As Defendant concedes, Plaintiff’s UCL injunctive-relief claim is not arbitrable because the text of the Arbitration Agreement carves out the UCL injunctive relief claim. (Reply at p. 10:7-8). Hence, the Court ORDERS that all Plaintiff’s claims be arbitrated now except the UCL injunctive relief claim. 4 See fn. 1 supra.

efficiency of this arbitration in harmony with the strong public policy objectives of the FAA and California Code of Civil Procedure Section 1281.2 et seq.

CONCLUSION & ORDER

Accordingly, the Court ORDERS that:

1. Defendant’s Motion to Compel Arbitration is GRANTED and all Plaintiff’s claims except the UCL injunctive-relief claim must be arbitrated now; and

2. This entire civil action—including the UCL injunctive-relief claim—is STAYED now until this arbitration is complete. 5

SO ORDERED.

Date: May 27, 2026 Hon. Vincent I. Parrett Superior Court of the State of California, County of Santa Clara

5 Lest there be any doubt, after this stay is lifted when this arbitration is complete,

Plaintiff may litigate the UCL injunctive-relief claim in this Court if Plaintiff wishes to do so at that time.

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