Doe v. Massage Envy Franchising, LLC
| Decision Date | 29 December 2022 |
| Docket Number | A161688 |
| Citation | 87 Cal.App.5th 23,303 Cal.Rptr.3d 269 |
| Parties | Jane DOE, Plaintiff and Respondent, v. MASSAGE ENVY FRANCHISING, LLC, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Sacks Ricketts & Case, Luanne Sacks, San Francisco, Michele D. Floyd ; Greines, Martin, Stein & Richland, Laurie J. Hepler, San Francisco, Jeffrey B. Gurrola, for Defendant and Appellant
Law Offices of Valerie T. McGinty, Valerie T. McGinty ; Thompsom Law Offices, Robert W. Thompson, Irvine, Kristen A. Vierhaus; Laffey, Bucci & Kent, Brian T. Kent, Stewart Ryan, for Plaintiff and Respondent
Miller, J. Plaintiff Jane Doe alleges that she was sexually assaulted by a massage therapist during a massage at a Massage Envy retail location in San Rafael, California. She filed a lawsuit for damages against the Arizona-based franchisor that licenses the "Massage Envy" brand name (Massage Envy Franchising, LLC, or MEF), and the independently owned "Massage Envy" branded franchise location in San Rafael where the assault allegedly occurred.
MEF (the franchisor) moved to compel arbitration on the basis of a "Terms of Use Agreement" presented to plaintiff when she checked in for a massage she had booked at the San Rafael franchise location. The trial court concluded that there was no agreement to arbitrate between plaintiff and MEF, and denied the motion.
In this appeal from the trial court's order, MEF argues that the "Terms of Use Agreement," which was available to plaintiff via hyperlink on the electronic tablet she was given at the franchise location to check in for her massage, is a valid and enforceable "clickwrap" agreement of the sort that courts routinely enforce. We disagree. In the circumstances here, plaintiff did not have reasonable notice that she was entering into any agreement with MEF, much less notice of the terms of the agreement. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are undisputed.
Sometime before August 7, 2017, plaintiff entered into a "Wellness Agreement" with an independently owned Massage Envy franchisee located in San Rafael. The Wellness Agreement was in essence a membership that, in exchange for a monthly fee, entitled plaintiff to one massage per month and a reduced rate on any additional massages. The Wellness Agreement continued month-to-month until cancellation by plaintiff. It did not mention arbitration. Plaintiff was a "member" of San Rafael Massage Envy for several years without incident.
On August 7, 2017, plaintiff had an appointment for a massage at San Rafael Massage Envy. Before the start of her massage, a staff member handed her an electronic tablet and asked her to quickly check in. The check-in process, as we will describe, involved completing two electronic forms.
MEF acknowledges that as of August 7, 2017, it had no pre-existing relationship with plaintiff. However, MEF asserts that the August 7 check-in process involved use of an "In-Store Application" that MEF had developed for its franchisees, including San Rafael, and that in the course of checking in for her massage by means of the tablet, plaintiff executed a contract with MEF. But no one at the San Rafael location told plaintiff that in using the tablet to check in she would be using an "In-Store Application" that MEF had developed, or entering into a binding agreement with MEF, an entity with which she had no relationship.
We describe in some detail the tablet screens that were presented to plaintiff during the check in process.
The first screen plaintiff saw had a bright teal-blue header with a white "ME" logo and three pale teal-blue headings across the top of the screen: "Welcome," "Massage," and "My Consent." This screen, entitled "Before We Get Started" in bright purple, stated: The fields for plaintiff's name, address, and contact information were either pre-populated, or plaintiff filled them in.
Upon tapping a bright purple button labeled "Continue," plaintiff saw the next screen with the header "Welcome" in white with a white bar below it. This screen was entitled "Welcome [plaintiff's name]" shown in large, bright purple letters. Below that, under the heading "Massage Envy & You," was the following: Directly below were icons for two forms: one called "My Massage" and the other "General Consent." And directly under that was a bright purple button labeled, "View My Forms." There is no reference to a separate "Terms of Use Agreement," let alone an arbitration agreement.
After tapping the "View My Forms" button, plaintiff was presented with a series of screens with the word "Massage" in white in the heading above the title "My Massage," in large bright purple letters. On these "Massage" screens, plaintiff was instructed to "tap your areas of stress and pain," indicate whether she was "comfortable receiving therapeutic massage" on various depicted areas of her body, identify her "Daily Activities," answer questions about her "Lifestyle," and complete a scroll-down form (apparently five screens long) called "My Health History."
At the end of the health history, plaintiff tapped a check-box indicating she was 18 or older, and then, upon tapping a bright purple button labeled "Continue," she was presented with a screen with the words "My Consent" in white in the heading and the title "My Consent" in large bright purple letters. This corresponded to the second of the two "my form" icons shown on an earlier screen. Under the title was a scroll-down document (in a small black font, single-spaced on a white background, apparently about five screens long) entitled "General Consent," which began, "Please read and review in full to sign below." There followed a bold-face heading, "Assumption of Risk, Release, Waiver of Liability, and Indemnification," and a paragraph that began, "By signing below, you understand, acknowledge, agree ... that the information provided by you on this Wellness Chart may be shared with and utilized by any Message Envy location for the purpose of providing you services at any Massage Envy location you choose...." The second paragraph of the General Consent stated, again, "Please read and review in full to sign below." The third paragraph stated, Additional paragraphs followed.
What stands out about the "General Consent" is that it was an agreement between plaintiff and San Rafael Massage Envy , identified as an "independently owned and operated Massage Envy® franchise." In other words, where plaintiff had gone for her massage. Also notable is that the General Consent did not define or identify MEF, though it did mention "MEF" as an entity that was not providing plaintiff with massage services or employing therapists or estheticians, and that was being released from liability.
Near the end of the General Consent form and in what appears to be the same size and font used in the text of the General Consent, plaintiff was presented with a line of text that read, "I agree and assent to the Terms of Use Agreement," next to a check-box. Below that, and still within the scroll-down General Consent form, was a blank signature line and date line, and below that a bright purple button labeled "Continue."
The words "Terms of Use Agreement" were apparently in gray (lighter than the black text of the General Consent and lighter than the preceding words, "I agree and assent to the"). The words "Terms of Use Agreement," underlined in light purple, were a hyperlink that, if clicked, would have displayed a scroll-box that allows the user to read a document that is actually entitled "Terms and Conditions." This was the only hyperlink presented to plaintiff in the course of her check-in.
Under pressure from staff to complete the forms and check in quickly, plaintiff did not realize that there was a hyperlink to the Terms and Conditions. Plaintiff checked the box stating she agreed and assented, but she was not prompted or required to click on that hyperlink, and she did not. Plaintiff signed her name on the signature line on the tablet, tapped the bright purple "Continue" button, and was shown a screen thanking her by name and informing her that her therapist would be with her shortly.
In contrast with the General Consent form, Plaintiff was not required to scroll through the Terms and Conditions, and she did not see the Terms and Conditions when she checked in on August 7. If she had clicked on the hyperlink, she would have seen an agreement which, when printed in its entirety on standard size paper with standard margins, runs to 10 single-spaced pages. In the Terms and Conditions, just below the title was a paragraph in boldface capitals stating, The arbitration provision occupied three full pages of single-spaced text, starting on page four of the Terms and Conditions.
Plaintiff alleges that in the summer of 2017 she was sexually assaulted by a massage therapist during a massage at the San Rafael Massage Envy location. She alleges that she...
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