Freeman v. Priceline.com
Filed 11/7/13 Freeman v. Priceline.com CA2;/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
MICHAEL FREEMAN,
Plaintiff and Appellant,
v.
PRICELINE.COM, INC., et al.,
Defendants and Respondents.
B242653
(Los Angeles
County
Super. Ct.
No. BC444510)
APPEAL from
a judgment of the Superior Court
of
County. Elihu M.
Berle, Judge. Affirmed.
Law Office
of Michael Geller Inc., Michael S. Geller and Richard A. Steward for Plaintiff
and Appellant.
Skadden,
Arps, Slate, Meagher & Flom, Stacy R. Horth-Neubert, Jane Klinger;
Sedgwick, Michael R. Davisson and Amand K. Mines for Defendant and Respondent
Priceline.com, Inc.
Jill A.
Martin for Defendants and Respondents Trump Ruffin Tower I LLC and Trump Ruffin
Commercial LLC.
* * * * * *
The trial
court granted summary judgment in
favor of defendants and respondents Priceline.com,
Inc. (Priceline) and Trump Ruffin Tower I LLC and Trump Ruffin Commercial LLC
(collectively Trump) on claims for violation of the Consumers Legal Remedies
Act (Civ. Code, § 1750 et seq.) (the CLRA) and violation of the Unfair
Competition Law (Bus. & Prof. Code, § 17200 et seq.) (the UCL) brought by
plaintiff and appellant Michael Freeman.
The trial court simultaneously denied appellant’s motion for summary
adjudication. Using Priceline, appellant
booked a hotel room at a Trump property in Las Vegas, Nevada, and sought to hold
Priceline and Trump liable for allegedly failing to disclose that he would be
required to pay a resort fee and that Priceline received a service fee as part
of the reservation price.
We affirm. The undisputed evidence established Priceline
disclosed that resort fees charged by hotels were excluded from the total
charges a customer pays to Priceline and that the sum paid to Priceline
included an amount designated as a service fee.
In view of the disclosures, there was no triable issue of fact showing
that Priceline made a false or misleading representation or omission, or that
it included an unconscionable provision in its terms and conditions. Nor was there a triable issue of fact as to
whether it engaged in an unfair business
practice. The evidence likewise
failed to establish any basis to hold Trump liable.
FACTUAL AND
PROCEDURAL BACKGROUND
Priceline is an online travel
company that allows customers to make travel arrangements, including hotel
reservations, through its Web site.
Priceline contracts with hotels to facilitate reservations at rates the
hotels determine, in their discretion, whether they will accept. Priceline cannot require a hotel to make a
room available at any particular rate. To
make reservations, customers have the option of using Priceline’s Name Your Own
Price (NYOP) service or the Price Disclosed service. Customers can achieve substantial savings
through the NYOP service by receiving a deeply discounted rate not available
through more traditional channels.
A customer making an NYOP hotel booking on the
hotel by selecting the dates of stay, the general location of the hotel and the
quality or “star rating†of the hotel. The customer then names the
price he or she is willing to pay for a hotel that fits the selected
requirements. After entering that information, the customer
is shown a page entitled “Please Review Your Request,†a page known internally
at Priceline as the “Contract Page,†that displays to the customer the details
of the request—the desired star level, dates, number of nights and price. At the bottom of the details is an amount
designated as “Total Charges,†comprised of the offered price multiplied by the
number of nights and rooms requested, plus an amount reflecting “Taxes and Service
Fees.†The “Total Charges†figure is the
amount that will be charged to the customer’s credit card if the requested
price is accepted.
Directly
below the amount quoted as “Total Charges,†the Contract Page contains a
heading in large, bold, blue font entitled “Important Information,†followed by
five bullet points in the same sized font as the charges. The fourth bullet point states: “The reservation holder must present a valid
photo ID and credit card at check-in. The
credit card is required for any additional hotel specific service fees or
incidental charges or fees that may be charged by the hotel to the customer at
checkout. These charges may be mandatory
(e.g., resort fees) or optional (parking, phone calls or minibar charges) and
are not included in your offer price.â€
The
term “charges†in that bullet point is a hyperlink,
a single page captioned “Charges for Taxes and Fees†that provides in part: “Depending on the property you stay at, you
may also be charged (i) certain mandatory hotel specific service fees, for
example, resort fees (which typically apply to resort type destinations and, if
applicable, may range from $10 to $40 per day), energy surcharges, newspaper
delivery fees, in-room safe fees, tourism fees, or housekeeping fees and/or
(ii) certain optional incidental fees, for example, parking charges, minibar
charges, phone calls, room service and movie rentals, etc. These charges, if applicable, will be payable
by you to the hotel directly at checkout.
When you check in, a credit card or, in the hotel’s discretion, a debit
card, will be required to secure these charges and fees that may incur during
your stay. Please contact the hotel
directly as to whether and which charges and service fees apply.â€
Clicking
on the hyperlink phrase “Taxes and Service Fees†just above “Total Charges†on
the Contract Page likewise leads to the same page that informs the customer in
a separate paragraph: “In connection
with facilitating your hotel transaction, the charge to your debit or credit
card will include a charge for Taxes and Fees.
The charge includes an estimated amount to recover the amount we pay to
the hotel in connection with your reservation for taxes owed by the hotel including,
without limitation, sales and use tax, occupancy tax, room tax, excise tax,
value added tax and/or other similar taxes.
In certain locations, the tax amount may also include government imposed
service fees or other fees not paid directly to the taxing authorities but
required by law to be collected by the hotel.
The amount paid to the hotel in connection with your reservation for
taxes may vary from the amount we estimate and include in the charge to
you. The balance of the charge for Taxes
and Fees is a fee we retain as part of the compensation for our services and to
cover the costs of your reservation, including, for example, customer service
costs. The charge for Taxes and Fees
varies based on a number of factors including, without limitation, the amount
we pay the hotel and the location of the hotel where you will be staying, and
may include profit that we retain.â€
On
the Contract Page, the final sentence toward the bottom of the page provides: “I have read, accept and agree to abide by
Priceline.com’s terms and conditions and privacy policy.†The customer must place his or her initials in
a box next to this sentence before proceeding to the next screen page, where
the NYOP customer enters credit card information and submits an offer. A reservation cannot be completed unless the
customer places his or her initials next to the final sentence. The phrase “Terms & Conditions†is a
hyperlink; clicking on it leads to another page that sets forth the full
agreement between Priceline and the customer.
Among the terms and conditions in that agreement are the same paragraphs
describing charges and payment for taxes and fees reached through the “chargesâ€
and “Taxes and Service Fees†hyperlinks, as well as the statement “[t]he price
you name is per night and does not include [P]riceline.com’s charge to you for
Taxes and Fees.â€
Once
the customer has initialed the Contract Page, he or she can click to the next
page to enter credit card information and a billing address, and may submit the
request by clicking “Buy My Hotel Room Now.â€
At that point, Priceline attempts to match the customer’s offer price
with a rate loaded by a participating hotel, taking into account the margin
that Priceline seeks to earn by providing its reservation facilitation service.
NYOP customer’s offer price and Priceline’s margin requirements is found,
Priceline immediately charges the customer’s credit card and notifies the
customer of the match and the hotel’s identity.
Once the customer’s offer is accepted, the reservation is generally noncancelable
and nonrefundable.
On March 16, 2010, appellant used Priceline’s NYOP
service to make a reservation for a hotel in Las Vegas from April 5 to April 7,
2010. He had already scheduled some
activities there during that time period.
He selected Priceline “because of some ads,†and also because he thought
he might save some money and was curious about Priceline’s NYOP service. He understood that when using the NYOP
service, he would not know the identity of the hotel until after his offer was
accepted.
Proceeding
to Priceline’s Web site using the NYOP service, appellant entered Las Vegas as
the desired city, entered check-in and check-out dates, and requested one room.
After hitting the “search†button,
appellant indicated that he desired a five-star hotel and offered a price of
$89 per night. It was appellant’s
general practice to read all the obvious terms of any transaction in which he
was involved. In this instance, before
submitting his bid for a hotel room, appellant reviewed the “Total Charges†on
Priceline’s Contract Page, including the amount of the “Taxes and Service Feesâ€
charge. He also read the bullet points
identified under “Important Information†on the Contract Page. He read and placed his initials next to the
sentence on the Contract Page stating that he had read and agreed to abide by
Priceline’s terms and conditions. Appellant then submitted his credit card
information in order to pay the $209.68 “Total Charges†identified by
Priceline.
The Trump International
Hotel Las Vegas (Trump Hotel) accepted appellant’s offer price through the NYOP
service. Had appellant paid the standard
room rate, it would have been $109 for the first night and $119 for the second.
When appellant checked into the Trump
Hotel on April 5, 2010, a clerk requested that he provide a credit card to
cover a $15 per night resort fee, plus an occupancy tax, which would be charged
at checkout. It is the Trump Hotel’s
standard practice to charge a resort fee to all guests, regardless of how the
guest made the reservation. Appellant
paid the resort fee and did not ask that it be waived. Setting aside the issue of the resort fee,
appellant’s stay at the Trump Hotel satisfied his expectations for a five-star
hotel.
Appellant filed the operative
2011, alleging causes of action for violation of the CLRA and the UCL. He alleged that Priceline and Trump conspired
with one another to conceal from him that he would be required to pay the $15
per night resort fee, and that Priceline misrepresented the terms of the
transaction by keeping for itself part of the sum designated as “Taxes and Service
Fees.†Priceline and Trump answered
separately, generally denying the allegations and asserting multiple
affirmative defenses.
In October 2011, appellant moved for
summary adjudication on liability, offering his own declaration, a DVD of
Priceline commercials, screen shots of Priceline’s and Trump’s Web sites,
correspondence confirming his reservation and copies of Clark County, Nevada
ordinances as evidence in support of the motion. Thereafter, in December 2011 Priceline and
Trump filed separate motions for summary judgment. Priceline asserted the undisputed evidence
showed it affirmatively disclosed to appellant that he may be required to pay a
mandatory resort fee directly to a hotel in connection with a reservation made
through Priceline and that it disclosed “Taxes and Service Fees†included an
amount retained by Priceline as compensation for its services. In support of its motion, Priceline offered
the declaration of senior vice-president for hotels Timothy W. Gordon;
screen shots of its Web site including hyperlinks; and counsel’s declaration
attaching copies of discovery responses and an order in another matter. Trump made similar arguments, adding that it
could not be held liable as a matter of law given its undisputed role in the transaction.
It submitted the declaration of Brian
Baudreau, president and managing director of Trump Hotel; and counsel’s
declaration attaching discovery responses.
Priceline and Trump opposed
appellant’s motion and filed evidentiary objections. In turn, appellant opposed Priceline’s and
Trump’s motions.
The trial court heard the motions on
March 2, 2011, and thereafter entered an order granting Priceline’s and Trump’s
summary judgment motions and denying appellant’s summary adjudication motion;
the order also granted judgment in favor of Priceline and Trump. At the hearing, the trial court stated that
“the gravamen of plaintiff’s complaint first is that the additional resort fee
is a hidden additional charge that increases the nightly room rate
significantly and that the service fee charged by Priceline is not adequately
disclosed.†After summarizing the
undisputed evidence of the disclosures provided on Priceline’s Web site, the
trial court found “that the disclosures by Priceline are sufficient to meet
Priceline and the Trump defendants’ initial burden because this evidence shows
that Priceline did, in fact, make disclosures regarding the possible additional
mandatory charges, which may expressly include resort fees, as well as
disclosing that Priceline charges a service fee.†The trial court further found that
appellant’s evidence that he did not intend to stay at a “resort†destination
and the absence of information concerning the amount of the fee Priceline would
charge was insufficient to overcome the moving parties’ showing. The trial court further found the undisputed
evidence showed that the resort fee and the service fee were neither
procedurally nor substantively unconscionable.
Finally, the trial court concluded that undisputed evidence showing that
none of the disclosures made by Priceline were likely to mislead supported
summary judgment on appellant’s UCL claim.
The trial court added that appellant’s UCL claim failed for the
additional reason that he could have avoided any injury by booking directly
with a hotel that did not charge a resort fee or using a reservation system
that did not include a service fee.
Subsequently, the trial court entered an order overruling in part and
sustaining in part Priceline’s and Trump’s evidentiary objections.
This appeal followed.
DISCUSSION
Appellant contends the trial court
erroneously granted summary judgment because he demonstrated there were triable
issues of fact whether Priceline’s advertisements and its Web site disclosures
violated the CLRA and the UCL, and whether Trump conspired with Priceline in
connection with its violations. We find
no merit to appellant’s contentions.
I. Standard of Review.
Summary judgment is warranted
when the moving party shows by admissible evidence that the “action has no
merit or that there is no defense†thereto.
(Code Civ. Proc., § 437c, subd. (a).)
To
satisfy this burden, a moving defendant is not required to “conclusively negate
an element of the plaintiff’s cause of action. . . . All that the defendant need do is to ‘show[]
that one or more elements of the cause of action . . . cannot be
established’ by the plaintiff.
[Citation.]†(
25 Cal.4th 826, 853, fn. omitted.)
Once the defendant makes this
showing, the burden shifts to the plaintiff to show the existence of a triable
issue of material fact, which must be demonstrated through specific facts based
on admissible evidence and not merely the allegations of the pleadings. (Code Civ. Proc., § 437c, subd. (p)(2);
Borders Online v. State Bd. of
Equalization (2005) 129 Cal.App.4th 1179, 1188.) “[I]n order to avert summary
produce substantial responsive evidence sufficient to establish a triable issue
of material fact on the merits of the defendant’s showing. [Citations.]
For this purpose, responsive evidence that gives rise to no more than
mere speculation cannot be regarded as substantial, and is insufficient to
establish a triable issue of material fact.
[Citations.]†(
Cal.App.4th 151, 162–163.)
We review a grant of summary judgment
de novo, independently examining the evidence and determining whether the
moving party is entitled to judgment
as a matter of law. (Code Civ. Proc., §
437c, subd. (c); Norgart v. Upjohn Co. (1999)
21 Cal.4th 383, 404; Peart v. Ferro (2004)
119 Cal.App.4th 60, 69.) We limit our
review of the trial court’s ruling to the evidence presented in the supporting
and opposing papers submitted to the trial court, except that to which
objections have been made and sustained, and the uncontradicted inferences
reasonably deduced from the evidence. (
Cal.4th 61, 65–66; Artiglio v. Corning
Inc. (1998) 18 Cal.4th 604, 612; Fisher
v. Gibson (2001) 90 Cal.App.4th 275, 282.)
While we independently
abuse of discretion. (
Products, Inc. (2008) 158 Cal.App.4th 666, 679; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) But in order to demonstrate an abuse of
discretion, an appellant must affirmatively challenge the evidentiary rulings
on appeal. In other words, the asserted
erroneous evidentiary rulings must be identified “as a distinct assignment of
error†and be supported by analysis and citation to authority. (Roe v.
McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.) When an appellant does not challenge the
trial court’s sustaining objections to evidence offered in connection with a
summary judgment motion, “any issues concerning the correctness of the trial
court’s evidentiary rulings have been waived.
[Citations.]†(
1008, 1014–1015.)
II. The Trial Court Properly Granted Summary
Judgment on Appellant’s CLRA Claim.
A. Deceptive Acts.
Civil Code section 1770, subdivision (a) makes unlawful
certain “unfair methods of
competition and unfair or deceptive acts or practices undertaken by any person
in a transaction intended to result or which results in the sale or lease of
goods or services to any consumer . . . .†(See Daugherty
v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 834.) A deceptive act includes the
misrepresentation or omission of a material fact. (McAdams
v. Monier, Inc. (2010) 182 Cal.App.4th 174, 185.) For an omission to be
actionable under the CLRA, it must be contrary to a
representation actually made by the defendant, or the defendant must have had a
duty to disclose the omitted fact. (
supra, at p. 835; see also Bardin v.
DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1276.) Moreover, the plaintiff asserting a CLRA
claim must show the misrepresentation or omission was likely to deceive a
reasonable consumer. (
(2003) 113 Cal.App.4th 1351, 1361–1362.)
In his complaint,
appellant alleged that Priceline’s television
advertisements were deceptive and misleading in that they did not disclose the
price offered by a customer through Priceline’s NYOP service would not be the
total price for the room. He further
alleged that the resort fee and service fee information on Priceline’s Web site
was misleading because it was “[b]uried deep in the multiple screen reservation
process, in very small print, without any emphasis.†He alleged that Priceline’s conduct in this
regard violated Civil Code section 1770, subdivision (a)(5) (“[r]epresenting
that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities which they do not have or that a
person has a sponsorship, approval, status, affiliation, or connection which he
or she does not haveâ€) and subdivision (a)(9) (“[a]dvertising goods or services
with intent not to sell them as advertisedâ€).
In support of their summary judgment motions, Priceline
and Trump offered evidence of the steps a customer must undertake in order to
make a reservation under the NYOP system, evidence of the information available
to a customer making an NYOP reservation, and deposition testimony from appellant
that he read the information presented to him and agreed to abide by
Priceline’s terms and conditions when he made his reservation. Appellant did not dispute Priceline’s and
Trump’s material facts. At the summary
judgment hearing, the trial court summarized the undisputed evidence of
appellant’s reservation process, including identifying the Priceline Web site
pages appellant necessarily saw that described the customer’s potential payment
of a resort fee and Priceline’s retention of compensation for its services.
On
the basis of this evidence, the trial court concluded that Priceline and Trump
satisfied their burden on summary judgment by showing they made sufficient
disclosures: “The language of the
Contract Page clearly stated that plaintiff was required to present a credit
card upon check in, and that credit card is required for any additional hotel
specific service fees, some of which may be mandatory. The disclaimer expressly included resort fees
as just one example of a mandatory charge, and there is no evidence that
Priceline ever represented that resort fees were the only possible mandatory
charge or that the charge was only applicable to hotels that Priceline itself
has described as a ‘resort’ type of hotel. [¶] It
would be impossible for Priceline to notify a customer at the time of signing
on whether a hotel will require any mandatory fee, including a resort fee,
because neither Priceline, nor the customer, would know if any hotel meets the
customer’s parameters until after the credit information is entered on the page
following the Contract Page. [¶] Additionally, the Contract Page specifically
included an estimate for Taxes and Service Fees, which clearly indicates that
Priceline may charge an additional service fee. [¶] These
disclosures were clearly written and conspicuously placed on the Contract Page
and included hyperlinks to more detailed explanations of each of the charges at
issue. There are thus no representations
regarding the possibility of additional mandatory charges that are likely to
deceive a customer, and Priceline also disclosed that it charges a service
fee.â€
The trial court concluded that Priceline and Trump met
their burden to show appellant could not establish an essential element of his
claim, as the undisputed evidence showed they did not engage in a deceptive act
or make a misrepresentation in violation of Civil Code section 1770,
subdivisions (a)(5) and (a)(9). It
further concluded that appellant’s evidence failed to create a triable issue of
material fact. It expressly concluded
that appellant’s declaration in which he averred he did not specify a “resortâ€
destination and was unaware of Priceline’s service fee after viewing its
television commercials and making his reservation failed to establish a triable
issue in view of the undisputed evidence of Priceline’s disclosures. The trial court stated: “As the evidence discussed previously by the
court shows, Priceline did, in fact, make the disclosures regarding additional
mandatory charges, including the possibility of resort fees, as well as
disclosing a service fee. There is no
evidence that Priceline represented that a mandatory fee could only be charged
for a resort-type destination as defined by Priceline and the hyperlink
explains that resort fees typically apply at a resort-type destination, but
does not limit the fees to only resort-type destinations. [¶] Plaintiff has also failed to provide any
authority that would require Priceline to disclose the amount of the mandatory
fee.â€
On appeal, appellant has likewise failed to demonstrate
the existence of a triable issue of material fact. He argues the trial court failed to take into
account the omissions in Priceline’s television commercials in concluding that
Priceline made adequate disclosures. The
record belies his argument. In
ascertaining whether appellant’s evidence raised a triable issue of fact, the
trial court expressly relied on appellant’s evidence that Priceline’s
commercials omitted information about additional fees. It concluded this omission was immaterial in
view of undisputed evidence showing a Priceline customer would necessarily
receive the multiple disclosures contained on Priceline’s Web site before
making a reservation. We, too, have
viewed the commercials and find they fail to raise a triable issue. The three commercials—each of which display
scenarios that include elements of fantasy—contain limited information about
Priceline’s services and in no way enable a customer to bypass or otherwise
avoid the multiple disclosures on Priceline’s Web site. There are no parallels between the undisputed
evidence here and the cases cited by appellant in support of his argument the
commercials were deceptive. (See
86, 100 [evidence at jury trial that the non-lawyer defendant advertised he
provided “Legal Aid†services, represented he had a lawyer on staff when he did
not and advertised in Spanish though he had no Spanish-speaking employees
supported verdict finding CLRA violation that was not challenged on appeal];
609 F.Supp.2d 1104, 1123–1124 [no CLRA claim involved].)
Appellant next contends he raised a
triable issue of fact as to whether the disclosures on Priceline’s Web site
were misleading because many of them were contained within hyperlinks. To the contrary, hyperlinks have been held to
convey adequate and unambiguous notice in a variety of situations. (E.g., Chavez
v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 58 [“Using a summary notice that
directed the class member wanting more information to a Web site containing a
more detailed notice, and provided hyperlinks to that Web site, was a perfectly
acceptable manner of giving notice†of a proposed class action settlement];
109 Cal.App.4th 583, 588 [“We perceive no unfairness in Net2Phone’s requirement
that certain contractual terms must be accessed via hyperlink, a common
practice in Internet businessâ€]; Swift v.
Zynga Game Network, Inc. (N.D. Cal. 2011) 805 F.Supp.2d 904, 912 [binding
agreement to arbitrate created where “[p]laintiff was provided with an
opportunity to review the terms of service in the form of a hyperlink
immediately under the ‘I accept’ button and she admittedly clicked ‘Accept’â€];
Cal. 2007) 507 F.Supp.2d 1096, 1107 [Ticketmaster Web site providing its use
was subject to “Terms of Use†that was a hyperlink to the full terms of use and
providing that user agreed to abide by those terms by continuing past that page
held sufficient to show Ticketmaster was “highly likely to succeed in showing
that Defendant received notice of the Terms of Use and assented to them by
actually using the websiteâ€].) Here, in
addition to the undisputed evidence of the disclosures contained within the
hyperlinks, the evidence further showed appellant read and agreed to abide by
Priceline’s hyperlinked terms and conditions.
Appellant
finally contends it was error to grant summary judgment because whether
Priceline and Trump engaged in a deceptive act involves a question that is
factual in nature. He cites cases
characterizing as an issue of fact whether a misrepresentation or omission is
material (Stearns v. Ticketmaster Corp. (9th
Cir. 2011) 655 F.3d 1013, 1022) and whether an affirmative representation is
misleading (Chacanaca v. Quaker Oats Co. (2010)
752 F.Supp.2d 1111, 1125–1126). But here
the question was whether appellant raised a triable issue showing that
Priceline and Trump omitted to disclose specific information concerning the
possibility of a resort fee and the inclusion of a service fee. As explained in Daugherty v. American Honda Motor Co., Inc.,
supra, 144 Cal.App.4th at page
835, “although a
claim may be stated under the CLRA in terms constituting fraudulent omissions,
to be actionable the omission must be contrary to a representation actually
made by the defendant, or an omission of a fact the defendant was obliged to
disclose.†Here, appellant offered no
evidence to show either that Priceline’s disclosures were contrary to other
information it provided or that Priceline concealed any information it had a
duty to disclose. Accordingly, the trial
court properly concluded there were no factual issues remaining for trial in
connection with appellant’s CLRA claims under Civil Code section 1770,
subdivisions (a)(5) and (a)(9).
B. Unconscionability.
Appellant further alleged that Priceline
and Trump violated Civil Code section 1770, subdivision (a)(19) by “[i]nserting
an unconscionable provision in the contract.â€
The court in Aron v. U-Haul Co. of
California (2006) 143 Cal.App.4th 796, 808, described what must be shown to
satisfy the CLRA: “Unconscionability has both a
procedural and a substantive element.
[Citation.] Both elements must be
present for a court to invalidate a contract or clause, although the degree to
which each must exist may vary.
[Citation.] [¶] The procedural element of unconscionability
focuses on two factors: oppression and
surprise. [Citation.] ‘“Oppression†arises from an inequality of
bargaining power which results in no real negotiation and “an absence of
meaningful choice.â€â€™ [Citation.] ‘“Surprise†involves the extent to which the
supposedly agreed-upon terms of the bargain are hidden in a prolix printed form
drafted by the party seeking to enforce the disputed terms.’ [Citation.] [¶] The
substantive element of unconscionability focuses on the actual terms of the
agreement and evaluates whether they create ‘“overly harshâ€â€™ or ‘“one-sidedâ€â€™
results as to ‘“shock the conscience.â€â€™
[Citations.]†Unconscionability
is a question of law. (
The trial court
found the undisputed evidence failed to establish any unconscionability. It ruled “the disclosures
are clearly written and conspicuously placed on the Contract Page so the
element of surprise was lacking. [¶] Plaintiff also has numerous other sources for
booking a hotel room for vacation. The
terms are also not substantively unconscionable because nothing in the
disclosures shocks the conscience.†We
agree with the trial court that, as a matter of law, Priceline’s disclosures
were neither procedurally not substantively unconscionable.
Aron
v. U-Haul Co. of California, supra, 143 Cal.App.4th 796 is
instructive. There, U-Haul allegedly had
a practice renting
its trucks partially fueled, offering them to a customer with the fuel level
remaining from the previous customer
fee, plus $2 per gallon for fuel that it estimated from the fuel gauge to have
been used, but not replaced, by each customer.
It also declined to reimburse customers in the event they returned a truck
with more fuel than initially provided.
(Id. at pp. 800–801.) The plaintiff alleged these practices were
both procedurally and substantively unconscionable and violated Civil Code
section 1770, subdivision (a)(19). (
U-Haul Co. of California, supra, at
p. 809.) Finding the allegations were
properly stricken, the appellate court determined the claim of procedural
unconscionability failed because there was no surprise; though the plaintiff
may have expected a full fuel tank at the time of rental, the fuel obligations
imposed on him were clearly specified in the contract. (Ibid.) Moreover, there was no oppression because the
plaintiff could have rented a truck from another company. (Ibid.) With respect to substantive
unconscionability, the court determined that while the practices may have been
unreasonable, they did not in any way shock the conscience. (Ibid.)
The undisputed evidence mandates the same
result here. Though appellant argues he
was surprised by the payment of a resort fee and a service fee, both were
clearly and conspicuously disclosed. Moreover, appellant
could have reserved a hotel room through multiple other sources. Finally, nothing about the
content or manner of Priceline’s disclosures shocks the conscience. Summary judgment was properly granted on
appellant’s CLRA claim under Civil Code section 1770, subdivision (a)(19).
III. The Trial Court Properly Granted Summary Judgment on Appellant’s
UCL Claim.
In
his second cause of action, appellant alleged the same conduct—the alleged
nondisclosure of the possibility of a resort fee and the inclusion of a service
fee—constituted an unfair business practice within the meaning of Business and
Professions Code section 17200
section 17500. In consumer cases, courts tend to look at three factors to
ascertain whether a business practice is unfair: “(1) The consumer injury must be substantial; (2) the injury
must not be outweighed by any countervailing benefits to consumers or
competition; and (3) it must be an injury that consumers themselves could not
reasonably have avoided. [Citation.]†(Davis
v. Ford Motor Credit Co. LLC (2009) 179 Cal.App.4th 581, 597.) The failure to satisfy any one of the factors
is fatal to a UCL claim. (
Inc., supra, 144 Cal.App.4th at p. 839.)
The trial court here found Priceline
and Trump showed the last element could not be established, and appellant
failed to raise a triable issue as to whether he suffered an unavoidable
injury: “[T]he injury which plaintiff
alleges could have been avoided because all the unfair acts were conspicuously
disclosed, as previously discussed, and plaintiff had numerous other means of
booking a hotel room for vacation.
Plaintiff could have avoided the fees charged by booking through
Priceline by using another provider and could have booked directly with a hotel
that did not charge a resort fee. He could
have used other services that did not have the extra service fee.†The undisputed evidence
established that appellant was under no compulsion to use Priceline’s NYOP
service. Rather, appellant had planned
some activities in Las Vegas, and decided to use Priceline to make a hotel
reservation after he saw its television commercials and because he was curious
about the service and thought he might save some money. Appellant offered no evidence supporting the
requisite element of unavoidable injury.
The claimed harm here is no different than that alleged in
211 Cal.App.4th 1395, 1419, where the court held a demurrer was properly
sustained to a UCL claim based on insurance company’s practice to charge an
installment payment service fee because, among other reasons, “any policyholder
can avoid the ‘harm’ by opting to pay the premium in a lump sum rather than in
installments.†(Accord,
Credit Co. LLC, supra,
179 Cal.App.4th at p. 598 [“the alleged injury here, namely, the imposition
of successive late fees for successive months, reasonably could have been
avoided had Davis made his monthly payments timely, or within the 10-day grace
period, in accordance with his obligations under the contractâ€].)
Appellant also alleged that Priceline and
Trump violated section 17500. “California’s
false advertising law prohibits advertisements that are ‘untrue or misleading.’
(§ 17500.) To establish a violation, ‘it is necessary
only to show that “members of the public are likely to be deceived.â€â€™ [Citations.]â€
(Lopez v. Nissan North America,
Inc. (2011) 201 Cal.App.4th 572, 595.)
The trial court concluded this claim suffered from the same deficiencies
as the CLRA claim, stating that “defendants have met their initial burden by
showing that none of the disclosures made by Priceline were likely to mislead
and plaintiff has failed to offer any evidence raising a triable issue of
material fact.â€
In
asserting the trial court erred in this regard, appellant relies exclusively on
People v. Dollar Rent-A-Car Systems, Inc.
(1989) 211 Cal.App.3d 119, a case involving facts markedly different from
the undisputed evidence here. In that
case, car rental agency employees sold collision damage waivers (CDW) to
customers, affirmatively representing the CDW was insurance that would protect
the customer against his or her own negligence and liability in the event of an
accident, and would limit responsibility for any damage to $500. (Id.
at p. 123.) In truth, the rental agreements
made customers absolutely liable for any damage, and the CDW was not insurance
and did not provide protection from liability for a customer’s own
negligence. (Ibid.) Instead, the CDW only
limited the damages the car rental company could seek from a customer in the
event the customer was negligent. (
The appellate court held that substantial evidence supported the trial
court’s statement of decision finding that these practices violated sections
17200 and 17500, as, “[t]he testimony of former customers, rental agents, and
even the testimony of defendants’ executives, demonstrate a history of false
and misleading business practices and training procedures which had the actual,
if not intended, effect of confusing the car rental public about the liability
protection afforded by CDW and deceived customers into purchasing CDW under
false pretenses.†(People v. Dollar Rent-A-Car Systems, Inc., supra, at p. 129.)
Here,
in sharp contrast, appellant offered no evidence to show that any Priceline employees
or materials provided representations that were contrary to the information
plainly and conspicuously provided on Priceline’s Web site concerning the
payment of a resort fee and a service fee.
Because there was no evidence creating a triable issue as to whether a
customer was likely to be deceived, the trial court properly granted summary
judgment on this claim as well.
IV. The Trial Court Properly Granted Summary Judgment in Favor of
Trump.
The trial court granted summary
judgment in favor of Trump for the same reasons it granted summary judgment in
favor of Priceline, finding no need to address any independent arguments raised
by Trump. On appeal, appellant contends
that he raised a triable issue of fact as to whether Trump should be held
liable as a civil conspirator. Our
conclusion that summary judgment was properly granted on appellant’s CLRA and
UCL claims likewise disposes of any civil conspiracy claim. “[A] civil conspiracy does not give rise to a
cause of action unless an independent civil wrong has been committed.†(Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1062.)
Stated another way, “‘[t]here is no separate tort of civil
conspiracy, and there is no civil action for conspiracy to commit a
recognized tort unless the wrongful act itself is committed and damage
results therefrom.’ [Citations.]†(Richard
B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574.) Appellant’s inability to raise a triable
issue of fact supporting his CLRA and UCL claims is fatal to his assertion of a
civil conspiracy.
DISPOSITION
The judgment is
affirmed. Priceline and Trump are
entitled to their costs on appeal.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________,
J.
FERNS
We
concur:
____________________________, Acting P. J.
ASHMANN-GERST
____________________________, J.
CHAVEZ
is an image or section of
text referring to another document on the Internet and is in essence a system
which takes people between Web sites or web pages.
Priceline’s pricing methodologies and rates were filed under seal. The parties have neither cited nor asked us
to rely on any of the information filed under seal to resolve this appeal, and
we have found no reason to rely on those documents for the purpose of
addressing summary judgment.
