Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 1 of 11 Page ID #:163 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 Present: Honorable JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE Terry Guerrero Deputy Clerk ATTORNEYS PRESENT FOR PLAINTIFF: Not Present N/A Court Reporter ATTORNEYS PRESENT FOR DEFENDANT: Not Present PROCEEDINGS: (IN CHAMBERS) ORDER DENYING DEFENDANT’S MOTION TO COMPEL ARBITRATION (Doc. 9) Before the Court is a Motion to Compel Arbitration filed by Defendants Fitness & Sports Clubs, LLC and Fitness International, LLC. (Mot., Doc. 9.) Plaintiff Beau Briones opposed, and Defendants replied. (Opp., Doc. 12; Reply, Doc. 13.) Having read and considered the parties’ briefs, heard oral argument, and taken the matter under submission, the Court DENIES Defendants’ Motion. I. BACKGROUND Defendants Fitness International, LLC and Fitness & Sports Clubs, LLC (together “Fitness”) operate over 650 gyms and health clubs in at least 30 states, including a fitness club located in Long Beach, California. (Pham Decl. ¶¶ 1, 3, Doc. 9-2.) Fitness & Sports is a wholly-owned subsidiary of Fitness International. (Id. ¶ 2.) As part of its regular course of business, Fitness enters into membership agreements with each of its members, and it enters into Personal Training Agreements (“PTA”) with members who enroll in personal training programs. (Id. ¶ 4.) To enter into the above agreements, Long Beach club members sign an electronic signature device and have their signatures and/or initials transposed to the agreements. (Mallonee Decl. ¶¶ 4-9, Doc. 9-7; Bryant Decl. ¶¶ 4-11, Doc. 9-6.) According to the Long Beach club’s standard procedure, employees are allegedly trained to (1) first review the agreement terms with the member on a computer _____________________________________________________________________________ CIVIL MINUTES – GENERAL 1 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 2 of 11 Page ID #:164 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 monitor facing the member, (2) obtain signatures or initials where indicated on the agreement, and (3) provide a printed copy of the signed agreement to the member. (Id.) Fitness also states that from May 2013 to November 2014, the electronic signature devices at the Long Beach club had a sticker that stated: “Review Agreement Before Signing; by Electronically Signing You Agree to All of its Terms. You are Entitled to a Copy. If You Do Not Receive One, Call 949-255-7200.” (Bryant Decl. ¶ 12; Suppl. Bryant Decl. ¶ 3, Doc. 13-1; Suppl. Bryant Decl. Ex. F, Doc. 13-2.) On May 19, 2013, Plaintiff Beau Briones signed an electronic signature device to enter into a membership agreement with Defendant Fitness & Sports Clubs, LLC at its Long Beach club. (Pham Decl. ¶ 5, Ex. A, Doc. 9-3.) On December 3, 2013, Plaintiff signed an electronic signature device to enter into a one-year PTA. (Pham Decl. ¶ 5, Ex. B, Doc. 9-4.) In November 2014, after the one-year PTA expired, Plaintiff indicated he did not wish to renew or continue the agreement. (Briones Decl. ¶ 4, Doc. 12-1.) Plaintiff asserts he then agreed to a one-month extension of his PTA for $140, the same monthly price he was previously charged under the PTA. (Id. ¶ 5.) Plaintiff signed the electronic signature device and the next day, provided $140 to cover the cost of the onemonth extension. (Id. ¶¶ 6, 8.) Plaintiff later learned that Fitness had electronically debited his bank account for an additional $110. (Id. ¶ 9.) When he contacted Fitness to dispute the withdrawal, Plaintiff saw a copy of a 2014 PTA with his transposed signature that agreed to a 52 week contract period at a cost of $110 per month. (Id. ¶ 11.) Fitness asserts, and Plaintiff does not dispute, that Plaintiff was emailed a copy of the membership agreement and both PTAs the same day he provided his electronic signatures. (Mallonee Decl. ¶¶ 11, 14; Bryant Decl. ¶¶ 14, 18.) However, as for the 2014 PTA, Plaintiff states he “was never presented with the agreement prior to signing, the electronic device contained no information about the agreement, and a copy . . . was never printed and given to [him] after signing.” (Briones Decl. ¶ 7.) Plaintiff also asserts that the electronic signature device “had no writing on it pertaining to any agreement that [he] was being asked to sign,” and that he “was not informed to go elsewhere to review any terms and conditions of the agreement he entered into . . . .” (Id. ¶ 6.) He indicates he was “never informed, in writing or verbally, prior to signing, that the agreement [he] _____________________________________________________________________________ CIVIL MINUTES – GENERAL 2 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 3 of 11 Page ID #:165 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 was signing on the tablet device would contain an arbitration clause.” (Id. ¶ 11.) Finally, Plaintiff states that Fitness followed “the same practice and procedure for collecting [his] signature and applying it to the 2013 [PTA] and the original membership agreement.” (Id. ¶ 13.) Fitness provided to the Court copies of the membership agreement, 2013 PTA, and 2014 PTA that contain Plaintiff’s transposed signatures and initials. (Pham Decl. Exs. AC.) The membership agreement and both PTAs include an arbitration clause. (Pham Ex. A at 4, Ex. B at 7, Ex. C at 10.) The agreements provide in relevant part: In the event of any dispute . . . between you and [Fitness] . . . you and [Fitness] consent to arbitrate that dispute before a single arbitrator under the then current rules of the American Arbitration Association in a location near your [Fitness] club, rather than litigate the dispute in court. (Id.) The arbitration clause also provides the following delegation provision: If [Fitness] is a party to the proceeding, the arbitrator shall interpret and determine the validity of the arbitration provision, including unconscionability. If the arbitrator finds that the arbitration agreement, including the class waiver, is unenforceable, in whole or I part, the entire arbitration provision shall be null and void and either party may file the action in court. (Id.) On January 12, 2016, Plaintiff filed a putative class action complaint against Fitness alleging the following claims: (1) unfair competition, Cal. Bus. & Prof. Code § 17500 et seq., (2) unfair competition, Cal. Bus. & Prof. Code § 17200 et seq., (3) violation of the Consumer Legal Remedies Act, Cal. Civ. Code § 1750 et seq., (4) violation of the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et seq., (5) violation of the Health Studio Services Contract Act, Cal. Civ. Code § 1812.80 et seq., (6) conversion, and (7) violation of the Financial Elder Abuse Act, Cal. Welf. & Inst. Code § 15610.30. _____________________________________________________________________________ CIVIL MINUTES – GENERAL 3 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 4 of 11 Page ID #:166 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 (Compl. ¶¶ 84-144, Doc. 1.) Fitness1 now moves to compel arbitration of Plaintiff’s claims. II. LEGAL STANDARD Congress enacted the Federal Arbitration Act “in 1925 as a response to judicial hostility to arbitration.” CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 668 (2012). The FAA provides that an agreement to arbitrate disputes arising from “a contract evidencing a transaction involving commerce” shall be “valid, irrevocable, and enforceable.” 9 U.S.C. § 2. “The court’s role under the Act 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 Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). The “party seeking to compel arbitration has the burden under the FAA to show [these two elements].” Ashbey v. Archstone Property Mgmt., Inc., 785 F.3d 1320, 1323 (9th Cir. 2015). “[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. 1 Fitness International LLC was not a party to the membership agreement or the PTAs. District courts in the Ninth Circuit have established a two-prong standard for determining when a nonsignatory defendant can compel arbitration of a signatory plaintiff’s claim: (1) the subject matter of the dispute must be “intertwined with the contract providing for arbitration” and (2) there must be a “close relationship” between a signatory party and the nonsignatory party seeking to compel arbitration. In re Apple & AT & TM Antitrust Litig., 826 F. Supp. 2d 1168, 1176-78 (N.D. Cal. 2011) (citing Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042, 1046 (9th Cir. 2009)). “[S]ubsidiaries, affiliates, agents, and other related business entities” have been deemed to satisfy the “close relationship” prong of this inquiry. See T-Mobile USA, Inc. v. Montijo, No. C12-1317 RSM, 2012 WL 6194204, at *3 (W.D. Wash. Dec. 11, 2012) (collecting cases). Here, Plaintiff’s claims are fundamentally intertwined with the 2014 PTA and Fitness’ alleged practice of misleading members into entering such agreements, (see Compl.), and Fitness & Sports Clubs is a wholly-owned subsidiary of Fitness International, (Pham Decl. ¶ 2). Moreover, Plaintiff failed to raise any objection or argument against Defendants’ assertion that Fitness International could move to compel arbitration under this standard. _____________________________________________________________________________ CIVIL MINUTES – GENERAL 4 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 5 of 11 Page ID #:167 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), superseded by statute on other grounds. However, “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960)). Arbitration agreements may also “be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability.’” AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746 (2011) (quoting Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996)). In these analyses, a court may consider evidence outside of the pleadings, such as declarations and other documents filed with the court, using “a standard similar to the summary judgment standard of [Federal Rule of Civil Procedure 56].” Concat LP v. Unilever, PLC, 350 F. Supp. 2d. 796, 804 (N.D. Cal. 2004); see also Hadlock v. Norwegian Cruise Line, Ltd., No. 10-0187-AG (ANx), 2010 WL 1641275, at *1 (C.D. Cal. Apr. 19, 2010); Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1104 n.1 (9th Cir. 2010) (“We take . . . facts from the First Amended Complaint, on file in the district court, and declarations filed in support of and in opposition to the motion to dismiss. All are part of our record.”). III. DISCUSSION A. Agreement to Arbitrate “The threshold issue in deciding a motion to compel arbitration is ‘whether the parties agreed to arbitrate.’” Quevedo v. Macy’s, Inc., 798 F. Supp. 2d 1122, 1133 (C.D. Cal. 2011) (quoting Van Ness Townhouses v. Mar. Indus. Corp., 862 F.2d 754, 756 (9th Cir. 1988)). “[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Knutson v. Sirius XM Radio, Inc., 771 F.3d 559, 565 (9th Cir. 2014) (alteration in original) (quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960)). “When determining whether a valid contract to _____________________________________________________________________________ CIVIL MINUTES – GENERAL 5 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 6 of 11 Page ID #:168 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 arbitrate exists, we apply ordinary state law principles that govern contract formation.” Davis v. Nordstrom, Inc., 755 F.3d 1089, 1093 (9th Cir. 2014) (citing Ferguson v. Countrywide Credit Indus., Inc., 298 F.3d 778, 782 (9th Cir. 2002)). “It is undisputed that under California law,2 mutual assent is a required element of contract formation.” Knutson, 771 F.3d at 565. “This principle of knowing consent applies with particular force to provisions for arbitration.” Id. at 566 (quoting Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal. App. 3d 987, 993 (1972)). Thus, “[a]n offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware[.]” Id. “[T]he party seeking to compel arbitration[] has the burden of proving the existence of an agreement to arbitrate by a preponderance of the evidence.” Id. at 565 (citing Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal. 4th 394, 413 (1996)). Here, Plaintiff argues that because he was not informed of or presented with the agreements when he provided his signatures, he never agreed to arbitrate. (Opp. at 9-13.) Defendants posit this issue should be reserved for the arbitrator pursuant to the agreements’ delegation clause, whereby “the arbitrator shall interpret and determine the validity of the arbitration provision, including unconscionability.” (Reply at 3.) However, the above delegated issue of validity pertains to “whether [the arbitration agreement] is legally binding, as opposed to whether it was in fact agreed to.” Rent-ACenter, W., Inc. v. Jackson, 561 U.S. 63, 69 n.1 (2010) (emphasis added). The latter question remains a threshold issue for this Court to decide. Accordingly, in this Order, the Court addresses whether Fitness sufficiently establishes an agreement to arbitrate. For the following reasons, the Court finds that Fitness fails to satisfy its burden of establishing this agreement. First, Fitness argues that Plaintiff “was shown each Agreement before signing.” (Reply at 5.) However, its evidence reflects only that the Long Beach club encouraged a general practice of reviewing agreement terms with a member before obtaining the member’s signature. (See Bryant Decl. ¶¶ 6-18, Mallonee Decl. ¶¶ 5-13.) Fitness 2 Neither party disputes that California law applies in this case. _____________________________________________________________________________ CIVIL MINUTES – GENERAL 6 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 7 of 11 Page ID #:169 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 supervisors state that upon reviewing Briones’ membership agreement and PTAs, they believe the agreements were “completed in a manner consistent with the procedure [they] teach.” (Bryant Decl. ¶ 18; Mallonee Decl. ¶ 14.) As to the PTAs, Fitness argues that Plaintiff provided his signature or initials seven times for each agreement, which “is consistent with the company’s practice of reviewing each section in which a signature or initial was required.” (Reply at 5.) However, Plaintiff expressly states he was never presented with the agreements before he provided his signatures, nor was he informed— either verbally or in writing—that the agreements contained an arbitration clause. (Briones Decl. ¶¶ 11, 13, 15.) In light of this clear declaration, Fitness’ broad assertions as to its general practice fail to demonstrate that Plaintiff saw each agreement before signing. Accordingly, without evidence that Plaintiff saw or was aware of the arbitration provision before signing, Fitness fails to demonstrate an agreement to arbitrate. Second, Fitness asserts that the stickers on the electronic signature devices expressly informed Plaintiff that he consented to all agreement terms when he provided his signature. Plaintiff challenges this assertion; he states that when he provided his signatures, the device he signed had no writing that “pertained to any agreement [he] was being asked to sign” or “informed [him] to go elsewhere to review any terms and conditions of the agreement [he] entered into.” (Briones Decl. ¶¶ 6, 13.) However, even if the Court assumes the presence of these stickers at the time of Plaintiff’s signing, Fitness fails to establish an agreement to arbitrate. It is undisputed that the device on which Plaintiff placed his signature did not display any terms of the purported agreements. Thus, at most, Fitness can argue the stickers provide notice that the signee agrees to terms contained elsewhere. Fitness does not provide convincing authority that the presence of these stickers are sufficient, on their own, to create a contract under California law. The closest analogy found by the Court is California’s “incorporation by reference” doctrine, which provides that “parties may validly incorporate by reference into their contract the terms of another document.” Lucas v. Hertz Corp., 875 F. Supp. 2d 991, 998 (N.D. Cal. 2012) (quoting Slaught v. Bencomo Roofing Co., 25 Cal. App. 4th 744, 748 (1994)). When the Court identified this doctrine at the hearing, Plaintiff argued the doctrine supported his assertion that he did _____________________________________________________________________________ CIVIL MINUTES – GENERAL 7 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 8 of 11 Page ID #:170 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 not manifest any agreement to the unseen arbitration terms. For the following reasons, the Court agrees. “For the terms of another document to be incorporated into the document executed by the parties, (1) the reference must be clear and unequivocal, (2) the reference must be called to the attention of the other party and he must consent thereto, and (3) the terms of the incorporated document must be known or easily available to the contracting parties.” Id. (quoting Shaw v. Regents of Univ. of Cal., 58 Cal. App. 4th 44, 54 (1997)). Here, the stickers broadly reference an “Agreement,” and they inform the member that he “agree[s] to all of its terms” by providing an electronic signature. It is therefore arguable that condition (2) was met: the stickers called to the attention of the signee that he was agreeing to terms of an agreement that may not be before him, and the signee consented by signing the device. Fatally, however, the reference is not clear or unequivocal; it is ambiguous at best. Because the stickers do not identify any agreement by name, they fail to give notice of which agreement the member agrees to when providing his signature. In light of the fact that Fitness appears to use this device to place signatures on several different agreements, the reference is anything but clear. Thus, the stickers fail to clearly “guide the reader to the [relevant] incorporated document.” See Shaw, 58 Cal. App. 4th at 54. Moreover, the Court notes that the stickers do not seek to incorporate additional terms to an agreement; the stickers seek to incorporate the terms of the entire agreement. Fitness fails to provide any legal authority that this type of incorporation is permissible or even contemplated under California’s “incorporation by reference” doctrine. Fitness also argues that Plaintiff’s signatures and initials are analogous to “I agree” buttons on clickwrap agreements, whereby an online user “clicks on an ‘I agree’ box after being presented with a list of terms and conditions of use.” (Reply at 4-5 (quoting Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1175 (9th Cir. 2014))). Although Plaintiff states he was never presented with the agreement terms, we note that courts have upheld modified clickwrap contracts where users are prompted to examine agreement terms located elsewhere, such as documents or webpages made accessible by hyperlinks in close proximity to the “I accept” button. See Swift v. Zynga Game Network, Inc., 805 F. Supp. 2d 904, 911-12 (N.D. Cal. 2011); Mohamed v. Uber Techs., Inc., 109 F. Supp. _____________________________________________________________________________ CIVIL MINUTES – GENERAL 8 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 9 of 11 Page ID #:171 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 3d 1185, 1190-91, 1195-97 (N.D. Cal. 2015). Superficially, the purported agreements at issue here may appear like modified clickwrap agreements. However, material differences distinguish the facts of this case from clickwrap agreements that have been upheld in this circuit. In such cases, the “I accept” button is generally preceded by a statement that the user agrees to certain specified agreements, and a hyperlink provides a direct and immediate opportunity to review the specified terms before providing assent. See Swift, 805 F. Supp. 2d at 907-08, 911-12; Mohamed, 109 F. Supp. 3d at 1190-91, 1195-97. These considerations are absent here, where the stickers fail to identify any specific agreements by name and the member is not provided a direct and immediate opportunity to review the agreement terms before signing the device. Thus, even assuming the presence of the stickers on the devices at the time of signing, there is no indication of what agreement or what agreement terms are purportedly made binding on the member. This Court has already held that, in the context of browsewrap agreements, online users are not bound to hyperlinked terms that are positioned where the terms are unlikely to be seen or noticed. Nguyen v. Barnes & Noble, Inc., No. 8:12-cv-0812-JST (RNBx), 2012 WL 3711081, at *3-4 (C.D. Cal. Aug. 28, 2012), affirmed, 763 F.3d 1171 (9th Cir. 2014). Here, Fitness seeks to bind Plaintiff to unseen and unnoticed terms that were never identified with specificity or provided by the device at the time of signing. Fitness fails to provide any convincing authority to support this assertion, and the Court declines to so hold. Accordingly, even if the Court assumes the stickers were present when Plaintiff provided his signatures, Fitness fails to demonstrate that Plaintiff manifested an agreement to arbitrate. Finally, Fitness asserts that Plaintiff was sent email copies of the agreements after he provided his signatures. (Mem. at 7, Doc. 9-1; Reply at 5-6.) Fitness argues that upon receiving email copies for three agreements on three different occasions, “Plaintiff cannot honestly claim that he did not know he entered into each Agreement with Fitness.” (Reply at 6.) However, Fitness fails to argue or provide any legal authority that the postsignature delivery of copies of an agreement, by itself, binds an individual to un-viewed _____________________________________________________________________________ CIVIL MINUTES – GENERAL 9 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 10 of 11 Page ID #:172 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 and unacknowledged arbitration terms. Accordingly, the email copies sent after each Agreement provide no indication that Plaintiff, at the time of signing, agreed to arbitrate. At the hearing, Fitness emphasized that the email copies indicate Plaintiff had access to the agreement terms—including the arbitration provision—before he provided his signature for the disputed 2014 PTA. Plaintiff asserts he never entered into the 2014 PTA and that when he provided his electronic signature in November 2014, he believed he was entering into a one-month extension of his 2013 PTA. (Briones Decl. ¶¶ 4-8.) Plaintiff does not dispute he was emailed a copy of the 2013 PTA on December 3, 2013. (See Meghdadi Decl. ¶ 7.) However, the email to which a copy of the agreement was purportedly attached was entitled “Purchase Confirmation.” (Id.) It is well established that “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.” Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal. App. 3d 987, 993 (1972) (citations omitted). The email heading does not provide notice of an agreement to arbitrate, nor does it indicate that the email contains notice of a binding arbitration provision. Fitness does not present any evidence that the content of the email conveyed the essential arbitration terms or provided notice of the arbitration clause in the attached agreement. Accordingly, Fitness fails to satisfy its burden of demonstrating that the email adequately notified Plaintiff of the relevant arbitration terms. See Campbell v. General Dynamics Gov’t Sys. Corp., 407 F.3d 546, 557-58 (1st Cir. 2005) (holding that a company-wide email announcement regarding the implementation of a new dispute resolution policy failed to put recipients on notice of the binding arbitration clause contained in the linked materials, which rendered the arbitration agreement unenforceable); Hudyka v. Sunoco, Inc., 474 F. Supp. 2d 712, 71617 (E.D. Pa. 2007) (finding that an email could not bind the recipient to a binding arbitration provision where it failed to notify the recipient of the essential terms of the provision). Accordingly, in light of all the above considerations, Fitness fails to demonstrate by a preponderance of the evidence that Plaintiff agreed to arbitrate. Where the moving _____________________________________________________________________________ CIVIL MINUTES – GENERAL 10 Case 8:16-cv-00044-JLS-KES Document 16 Filed 08/05/16 Page 11 of 11 Page ID #:173 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 16-44-JLS (KESx) Title: Beau Briones v. Fitness International, LLC et al. Date: August 5, 2016 party fails to adequately establish an agreement to arbitrate, the Court cannot compel arbitration. See Knutson, 771 F.3d at 569. Accordingly, the Court DENIES the Motion. IV. CONCLUSION For the foregoing reasons, the Court DENIES Defendants’ Motion to Compel Arbitration.3 Initials of Preparer: tg 3 Fitness also seeks judicial notice of Rule 7 of the AAA’s Commercial Arbitration Rules as well as pages 8 and 14 of the AAA’s Consumer-Related Disputes Supplementary Procedures. (RJN at 1, Doc. 10.) Fitness uses Rule 7 to support its argument that the delegation clause clearly and unequivocally delegates certain matters to the arbitrator, and Fitness uses the latter pages to support their argument that the arbitration agreement is not unconscionable. Given the Court’s denial of the Motion on other grounds, the Court denies the request for judicial notice as moot. _____________________________________________________________________________ CIVIL MINUTES – GENERAL 11