Luis Licea vs Boot Barn, Inc

Case Number

25CV01022

Case Type

Hearing Date / Time

Fri, 08/29/2025 - 10:00

Nature of Proceedings

CMC; Motion to Compel

Tentative Ruling

Luis Licea v. Boot Barn, Inc., d/b/a www.bootbarn.com       

Case No. 25CV01022

           

Hearing Date: August 29, 2025                                           

HEARING:              Motion To Compel Individual Arbitration And Strike Class Allegations

ATTORNEYS:        For Plaintiff Luis Licea: Scott J. Ferrell, Victoria C. Knowles, Pacific Trial Attorneys

                                    For Defendant Boot Barn, Inc.: Nicholas Hoffmann, Frank Talbott V, McGuireWoods LLP

                                   

TENTATIVE RULING:

For all reasons discussed herein, the motion of defendant to compel individual arbitration and strike class allegations is denied. Defendant Boot Barn, Inc., shall, on or before September 29, 2025, file its response to plaintiff’s complaint.

Background:

On February 18, 2025, plaintiff Luis Licea (Licea) filed a class action complaint against defendant Boot Barn, Inc., d/b/a www.bootbarn.com (Boot Barn), alleging two causes of action: (1) violation of California’s false advertising law (Bus. & Prof. Code, § 17501); and (2) violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) As alleged in the complaint:

On January 10, 2025, Licea visited Boot Barn’s web site (the Website) and purchased a pair of “Cody James Men’s Roland Western Boots” (the Product) for a “discounted” price of $169.97, which Boot Barn compared to a “strike-through” reference price of $229.99. (Compl. at p. 2, ll. 2-3 & ¶ 8.) According to information appearing on the “Wayback Machine”, a digital archive that allows users to view past versions of web sites, the Product was consistently sold at a “phantom” discount to the reference price on six dates between April 26 and December 26, 2024. (Compl., ¶ 10, fn. 1.) The reference price was not the “prevailing market price” in the 90 days preceding January 10, 2025, and the advertisement does not state the date upon which the reference price was the prevailing market price. (Compl., ¶ 9.)

Defendant uses artificially inflated prices for the Product in its pricing scheme on the Website to increase sales and profits by leading consumers to believe that they are buying products at a substantial discount. (Compl., ¶ 13.) Licea brings the action on behalf of at least 50 similarly situated persons who purchased one or more of Boot Barn’s products from the Website in California for a higher reference price and within the statute of limitations. (Compl., ¶¶ 24 & 26.)

On May 5, 2025, Boot Barn filed a motion for an order compelling Licea to submit the claims alleged in the complaint to binding individual arbitration pursuant to an agreement which Boot Barn contends requires Licea to arbitrate the present dispute, and staying all proceedings pending the arbitration. Boot Barn also and alternatively moves for an order striking any references to a “class” alleged in the complaint, on the grounds that the complaint’s definition of the putative class includes individuals who did not suffer any deception or violation of the false advertising law, and is overly broad.

The motion is supported by a declaration of Adam Obermueller (Obermueller), who is currently employed by Boot Barn as “vp Ecommerce”. (Obermueller Decl., ¶ 1.) In this role, Obermueller provides and is responsible for strategic management and development of Boot Barn’s online sales and digital commerce initiatives/services to Boot Barn. (Obermueller Decl., ¶ 2.)

Obermueller states that, in connection with this litigation, he has reviewed the complaint and Boot Barn’s online shopping platform including the platform’s “conditions of use” on the date Licea alleges that he purchased the Product. (Obermueller Decl., ¶¶ 4-5.) A copy of the “conditions of use” referenced and reviewed by Obermueller is attached to the Obermueller declaration, and ostensibly include a document entitled “DISPUTE RESOLUTION & ARBITRATION AGREEMENT”, which the court will refer to as the Agreement. (Obermueller Decl., ¶ 4(c) & Exh. 1.) Obermueller asserts that, at the time Licea purchased the Product as alleged in the complaint, the “conditions of use” were contained in and governed Licea’s use of the Website. (Obermueller Decl., ¶¶ 5-6.)

Obermueller further states that, as a part of the online transaction and check out process at the time of Licea’s purchase, customers of Boot Barn were required to click a “Place Order” button before completing a transaction. (Obermueller Decl., ¶ 7.) Immediately below this “Place Order” button is a statement that “By placing your order, you agree to BootBarn.com’s privacy notice and conditions of use.” (Ibid.) According to Obermueller, the “conditions of use” referenced in this statement could be accessed by a customer by clicking a hyperlink (the “conditions of use” hyperlink or hyperlink) appearing below the “Place Order” button. (Obermueller Decl., ¶ 8.) Upon clicking the “conditions of use” hyperlink, the customer would be redirected to the page containing the “Terms”. (Ibid.) Obermueller also asserts that a transaction is not complete until the customer clicks the “Place Order” button immediately above the “conditions of use” hyperlink. (Ibid.)

The motion is also supported by a declaration of Frank Talbott (Talbott), who states that he is admitted to practice in the State of Virginia, that he represents Boot Barn, and that a pro hac vice application is forthcoming. (Talbott Decl., ¶ 1.) Talbott asserts that on April 25, April 28, and April 29, 2025, he met and conferred with Licea’s counsel to affirm the basis for the present motion. (Talbott Decl., ¶ 3.)

Licea opposes the motion. In support of that opposition, Licea submits a declaration stating on January 10, 2025, he visited the Website and purchased the Product by using the “Guest Checkout” option, and that Licea did not create an account to purchase the Product. (Licea Decl., ¶ 2.)

Licea further asserts that, during a visit to the Website on February 18, 2025, Licea was unaware of and never saw any contractual terms, including any conditions of use, terms of service, terms and conditions, terms of use, or any similar language. (Licea Decl., ¶ 3.) Licea further asserts that, during his Website visit, he did not click on any hyperlink containing any contractual terms applicable to Licea’s use of the Website and did not anticipate that he would enter into an ongoing relationship with Boot Barn which would be governed by extensive contractual terms. (Ibid.)

Licea further states that, as a California resident, he expected a California forum for the present case and that California law would apply to Licea’s claims against Boot Barn. (Licea Decl., ¶ 4.)

Licea also submits a declaration of his counsel, Scott J. Ferrell (Ferrell), who states that on January 16, 2025, Ferrell sent a pre-filing Consumers Legal Remedies Act or “CLRA” demand letter to Boot Barn’s principal place of business “on behalf of a putative class of California consumers for violating California law prohibiting false reference pricing.” (Ferrell Decl., ¶ 2 & Exh. 1 [CLRA demand letter].) On January 21, 2025, Ferrell received an email from Boot Barn’s counsel requesting additional information about the dispute in order to respond, and communicating that Boot Barn had received Ferrell’s CLRA demand letter. (Ferrell Decl., ¶ 3 & Exh. 2.) Boot Barn’s counsel did not communicate any intention to arbitrate the present dispute. (Ferrell Decl., ¶ 3.)

Ferrell further states that on January 23, 2025, Ferrell sent to Boot Barn’s counsel an email attaching a draft complaint for the purpose of providing Boot Barn with details about Licea’s dispute, and making a settlement offer on Licea’s behalf. (Ferrell Decl., ¶ 4 & Exh. 3.) Boot Barn’s counsel also did not communicate to Ferrell any intention to arbitrate the dispute at that time. (Ferrell Decl., ¶ 4.)

According to Ferrell, Boot Barn’s counsel also did not communicate an intention to arbitrate this dispute when Ferrell sent a follow up email on February 3, 2025, expressing Licea’s intention to file the complaint, among other things. (Ferrell Decl., ¶ 4 & Exh. 5 [follow up email].)

On February 3, 2025, Ferrell received an email from Boot Barn’s counsel stating, among other things, that counsel would contact Boot Barn about the dispute and settlement offer and whether counsel would be authorized to accept service of process on behalf of Boot Barn. (Ferrell Decl., ¶ 6 & Exh. 6.) Boot Barn’s counsel did not state in this email any intention to arbitrate the dispute. (Ferrell Decl., ¶ 6.)

Ferrell states that he was first notified of Boot Barn’s intention to arbitrate the present dispute on April 28, 2025. (Ferrell Decl., ¶ 7 & Exh. 6.)

Ferrell also asserts that the Website provides users with the option of using a “Guest Checkout” which, according to Ferrell, requires a user to input their email address but does not require that the user create an account to use the Website. (Ferrell Decl., ¶ 8 & Exh. 7 [“Guest Checkout” as of August 14, 2025].)

Ferrell further asserts that, as of April 28, 2025, the text beneath the “Place Order” button on the final checkout screen of the Website stated: “By placing your order, you agree to Bootbarn.com’s privacy notice and conditions of use.” (Ferrell Decl., ¶ 9 & Exh. 8 [checkout screen as of April 28, 2025].) Based on Ferrell’s comparison of the type size of this text and the “Place Order” button, and the known type size of that text as of August 14, 2025, Ferrell believes that the type size is 9 points, and that the text of the “Place Order” button is 14 points. (Ibid.) Further, the text and the hyperlink to the “conditions of use” appearing on the final checkout screen of the Website appeared in black font as of April 28, 2025. (Ferrell Decl., ¶ 10 & Exh. 8.)

Ferrell further states that, as of August 14, 2025, the text beneath the “Place Order” button on the final checkout screen of the Website stated: “By clicking ‘Place Order’, you agree to the Boot Barn Conditions of Use and acknowledge our Privacy Policy including information about how we handle your data and our specific notices for California (Notice of Financial Incentive) and Colorado (Loyalty Program Disclosures). [¶] By clicking ‘Place Order,’ you will also be agreeing to the B Rewarded Loyalty Program Terms and Conditions through which you will be eligible to receive B Rewarded Points. You can cancel your membership in our rewards program at any time by contacting Customer Service at custserv@bootbarn.com or 1-888-440-2668.” (Ferrell Decl., ¶ 11 & Exh. 9.) Ferrell contends that the type size of this text on that date was 9 points, that other elements on the same screen appear in larger font, and that the “conditions of use” hyperlink was in blue font. (Ferrell Decl., ¶¶ 12-13 & Exh. 9.)

Analysis:

“ ‘Arbitration is ... a matter of contract.’ [Citation.] ‘The policy favoring arbitration cannot displace the necessity for a voluntary agreement to arbitrate. Although the law favors contracts for arbitration of disputes between parties, there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate. Absent a clear agreement to submit disputes to arbitration, courts will not infer that the right to a jury trial has been waived.’ [Citations]” (Remedial Construction Services, LP v. AECOM, Inc. (2021) 65 Cal.App.5th 658, 663, original italics.)

“Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.” (Cheng-Canindin v. Renaissance Hotel Associates (1996) 50 Cal.App.4th 676, 683.) “[C]ourts must first apply state law principles in determining whether the parties entered into an agreement to arbitrate.” (Garcia v. Stoneledge Furniture LLC (2024) 102 Cal.App.5th 41, 51 (Garcia).) “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 409-410, 413.)

For all reasons discussed below, Boot Barn has failed to meet its burden of proving the existence of an agreement to arbitrate the present dispute.

Waiver of the right to compel arbitration:

As a threshold issue, Licea contends that Boot Barn has engaged in litigation conduct inconsistent with a right to arbitrate by requesting in the present motion an order striking certain allegations of the complaint. Licea further contends that Boot Barn delayed in providing notice of its intent to arbitrate this matter until April 28, 2025. For these reasons, Licea argues, Boot Barn has waived its right to compel arbitration of the present dispute.

In reply, Boot Barn asserts that the first action it took in this litigation after it was served with a copy of the summons and complaint was to file and serve the present motion seeking to compel Licea to arbitrate his claims, and that Boot Barn’s request for an order striking class allegations is made only in the alternative. For these reasons, Boot Barn argues, Boot Barn has not waived its right to compel arbitration of Licea’s claims.

The parties do not appear to, and cannot reasonably, dispute that the purported waiver of any right by Boot Barn to compel arbitration of Licea’s claims arises from Boot Barn’s request for an order striking class allegations from the complaint, which Boot Barn asserts is typically made by demurrer or motion to strike. (Motion at p. 10, ll. 4-9.) For these and all further reasons discussed above, the purported waiver asserted by Licea arises from “conduct related to the judicial process….” (Thorup v. Dean Witter Reynolds, Inc. (1986) 180 Cal.App.3d 228, 235; cf. Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 964, fn. 1 [discussing “nonlitigation conduct” giving rise to waiver allegations at issue in that case].)

Generally, under both state law and the Federal Arbitration Act or “FAA”, codified as 9 U.S.C. § 1 et seq., the question of whether a party has waived a right to arbitrate a dispute by engaging in conduct related to the judicial process, or “litigation conduct”, is decided by the court and not the arbitrator. (Hong v. CJ CGV America Holdings, Inc. (2013) 222 Cal.App.4th 240, 255-258 (Hong); see also Middlesex County v. Gevyn Const. Corp. (1st Cir. 1971) 450 F.2d 53, 56, fn. 2 [the “pursuit of legal remedy inconsistent with arbitration” constitutes a default under the FAA]; Martin v. Yasuda (9th Cir. 2016) 829 F.3d 1118, 1123 (Martin) [the question of waiver based on litigation conduct is “presumptively for a court and not an arbitrator to decide”].)

Though Boot Barn contends, as further discussed below, that the Agreement includes a delegation clause which requires that an arbitrator and not the court to determine whether a valid and enforceable arbitration agreement exists, Boot Barn offers no reasoned legal or factual argument showing why the Agreement clearly and unmistakably provides that an arbitrator must determine the issue of waiver under the circumstances present here. (See, e.g., Hong, supra, 222 Cal.App.4th at p. 258 [the parties may agree that an arbitrator will determine the issue of waiver by placing “clear and unmistakable language to that effect in the [arbitration] agreement...”; Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 772 [“clear and unmistakable” test “applies under both the FAA and California law”].) For these and all reasons further discussed herein, the court will determine whether Licea has sufficiently shown that Boot Barn has waived any purported right to arbitrate the present dispute.

“Under both the [FAA] and state law, waivers of the right to arbitrate are not lightly inferred.” (Hong, supra, 222 Cal.App.4th at pp. 248-249.) Generally, a waiver of the right to arbitrate exists when a party has knowledge of an existing right to arbitrate and acts in a manner which is inconsistent with that right. (Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 573 (Quach); Martin, supra, 829 F.3d at p. 1124.)

To determine whether a party has waived its right to arbitration, the court considers whether “ ‘ “ ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; … whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; … whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; …[and] ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’…..” ’ [Citations.]” (Quach, supra, 16 Cal.5th at p. 573; Peterson v. Shearson/American Exp., Inc. (10th Cir. 1988) 849 F.2d 464, 467.) The court does not consider whether the party opposing arbitration has demonstrated prejudice. (Quach, supra, 16 Cal.5th at p. 585; Morgan v. Sundance, Inc. (2022) 596 U.S. 411, 418-419 [142 S.Ct. 1708, 212 L.Ed.2d 753].)

Though Licea filed this action on February 18, 2025, and even if the court were to assume without deciding that Boot Barn did not communicate its intent to compel arbitration of the present dispute until April 28, 2025, Boot Barn contends and court records, including the proof of service filed by Licea on April 18, 2025, reflect that Boot Barn was not served with process until April 2, 2025. Considering that the present motion was filed approximately one month after Boot Barn was served with a copy of the summons and complaint filed in this action, the court finds that Boot Barn did not unreasonably delay in seeking to compel arbitration of the claims alleged by Licea in the complaint.

In addition, though the filing of a pleading challenge such as a motion to strike allegations of the complaint may in some instances generally be inconsistent with an intent to invoke a right to arbitrate the dispute raised in that complaint, the grounds for Boot Barn’s request for an order striking class allegations are not the principal grounds advanced in the motion, and instead are advanced as an alternative basis for striking Licea’s class claims. For example, the grounds for Boot Barn’s request for an order striking class allegations include that the Agreement contains a waiver of Licea’s right to bring a class action. For these reasons, the court finds that the request for an order striking class allegations asserted in the present motion does not constitute substantial litigation conduct.

There is also no information or evidence which shows or suggests that Boot Barn took advantage of other procedures not available in arbitration or engaged in any bad faith or willful misconduct before seeking to compel arbitration of Licea’s claims. (Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 992 [general discussion], disapproved on another point in Quach, supra, 16 Cal.5th at p. 582, fn. 4.)

For all reasons discussed above, under the totality of the circumstances present here, the court finds that Boot Barn did not waive any right to arbitrate the present dispute.

Delegation clause:

Also as a threshold issue, Boot Barn contends that the Agreement contains a delegation clause pursuant to which the parties purportedly agreed to delegate the question of whether a valid arbitration agreement exists to the arbitrator. For this reason, Boot Barn argues, the court need not address, and should compel to arbitration, the issue of whether there exists an agreement to arbitrate Licea’s claims.

“Simply put, parties may delegate questions regarding the validity of an arbitration agreement (such as enforceability in the face of a challenge based on unconscionability) or aspect of an arbitration agreement (such as whether a particular claim is subject to the arbitration agreement) to the arbitrator if they clearly and unmistakably agree to do so. [Citation.] However, the delegation of such questions presupposes the existence of an agreement between the parties, which the court necessarily had to decide before it could enforce any such delegation.” (Garcia, supra, 102 Cal.App.5th at p. 50.)

Under the circumstances present here, Boot Barn’s argument confuses “the question of enforceability of an arbitration agreement (including whether the underlying dispute is subject to arbitration), with the question of the existence of any agreement at all.” (Garcia, supra, 102 Cal.App.5th at p. 49, original italics.) In the opposition to the present motion, Licea expressly disputes the existence of any agreement to arbitrate the present dispute or that he entered into the Agreement and agreed to its terms. When a party claims that it did not agree to an arbitration clause, “then the court must consider that claim...” notwithstanding the existence of a clear and unmistakable clause delegating arbitrability issue to the arbitrator. (Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1287.)

The ”axiom” that “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit ... recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.” (AT & T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 648-649 [106 S.Ct. 56, 88 L.Ed.2d 46].) For these and all reasons further discussed above, and considering that Boot Barn’s argument “presupposes the existence of an agreement between the parties” which Licea disputes, the court “necessarily ha[s] to decide” whether the Agreement is valid before it can enforce a purported delegation clause. (Garcia, supra, 102 Cal.App.5th at p. 50.)

Whether an agreement to arbitrate exists:

“In determining the existence of an agreement to arbitrate, the trial court must employ a three-step burden shifting process. [Citation.] The party seeking to compel arbitration bears an initial burden to show an agreement to arbitrate; that burden can be met by providing a copy of the alleged agreement. [Citation.] If that initial burden is met, the burden shifts to the party opposing arbitration to identify a factual dispute as to the agreement’s existence, thereby shifting the burden back to the arbitration proponent. [Citation.] At that point, and ‘[b]ecause the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.’ [Citation.]

“ ‘In these summary proceedings, the trial court sits as a trier of fact,’ weighing the evidence to reach a final determination. [Citation.] Ordinarily, ‘the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion.’ [Citation.] An evidentiary hearing is therefore not required but is appropriate if the enforceability of an agreement depends on ‘which of two sharply conflicting factual accounts is to be believed.’ [Citation.]

“Even when an agreement provides that it is governed by the FAA, courts must first apply state law principles in determining whether the parties entered into an agreement to arbitrate. [Citations.]” (Garcia, supra, 102 Cal.App.5th at p. 51.)

The Agreement attached to the Obermueller declaration provides: “both you and Bootbarn.com agree that any legal dispute between you and Bootbarn.com concerning or arising in any way out of these Terms, any purchase from Bootbarn.com, any communications between you and Bootbarn.com, or your participation in any other program or service provided by Bootbarn.com shall be resolved through binding individual arbitration unless you opt out of this Arbitration Agreement using the process explained below. You understand and agree that you are waiving your right to sue or go to court to assert or defend your rights. However, either you or Bootbarn.com may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim. The term ‘dispute’ means any dispute, action, claim, or other controversy between you and Bootbarn.com, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. ‘Dispute’ will be given the broadest possible meaning allowable under law.” (Obermueller Decl., Exh. 1 at p. 1 [section titled “Scope Of The Arbitration Agreement].)

Boot Barn does not dispute that Licea’s signature does not appear on the Agreement. Instead, to meet its burden to show the existence of an agreement to arbitrate, Boot Barn asserts based on information described above that Licea was notified during the check-out process that proceeding with the purchase of the Product meant that Licea was agreeing to the “conditions of use”, and that these conditions include the terms of the Agreement. Boot Barn further asserts that the “conditions of use” hyperlink, which was underlined and set off from a white background, would have taken Licea to a page where Licea could access the Agreement. For this reason, Boot Barn argues, by clicking the “Place Order” button appearing above the “conditions of use” hyperlink, Licea had actual and constructive knowledge of the Agreement and manifested his assent to its terms.

As more fully detailed above, Licea contends or effectively contends that he did not see or click the “conditions of use” hyperlink and was unaware of the Agreement either before or during his use of the Website and purchase of the Product. Under the circumstances present here where there is no evidence or information showing that Licea placed a handwritten or electronic signature on the Agreement, Licea’s statements are “sufficient to carry [Licea’s] burden in opposing [the] motion....” (Trinity v. Life Ins. Co. of North America (2022) 78 Cal.App.5th 1111, 1124-1125 (Trinity); see also Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 167 [finding that plaintiff met her burden “by filing an opposing declaration, saying she did not recall the agreement...”].)

The burden now shifts back to Boot Barn “to prove by a preponderance of the evidence that a contract was formed.” (Trinity, supra, 78 Cal.App.5th at p. 1125.)

Though the present record is sufficient to show that Licea was required to click the “Place Order” button to purchase the Product, that below this “Place Order” button appeared a statement that Licea was agreeing to the “conditions of use”, that the “conditions of use” hyperlink appeared below the “Place Order” button, and that the hyperlink, if clicked, would redirect a user of the Website to a page containing the Agreement, Boot Barn presents no information or evidence to show that Licea clicked or was required to click the “conditions of use” hyperlink, or that Licea was redirected to a page containing the Agreement, before completing the purchase of the Product. Instead, the available evidence and information shows, only and at most, that Licea “could” click the “conditions of use” hyperlink before clicking the “Place Order” button, and that upon doing so, Licea would have been redirected to a page containing the Agreement. (Obermueller Decl., ¶ 8.)

In addition, even if the court were to assume without deciding that Licea did click the “conditions of use” hyperlink (and the present record does not establish this fact), there is also no information to show the manner in which the “conditions of use” hyperlink redirects a customer to the Agreement. For example, the scant information provided in the motion fails to explain whether the “conditions of use” hyperlink redirects a purchaser of Boot Barn’s products directly to the Agreement itself, or whether the user must, after clicking the hyperlink, search through “conditions of use”, other hyperlinks, or other documents to locate or access the Agreement upon being redirected.

Further, to the extent information appearing in the Obermueller declaration is intended to show that Licea could have accessed the “conditions of use” hyperlink to access or review the terms of the Agreement, this information is too speculative compel a finding that Licea clicked the hyperlink, and was redirected to the Agreement or its terms. (Trinity, supra, 78 Cal.App.5th at p. 1125.)

Even if the court were to determine that the “conditions of use” hyperlink was prominently displayed beneath the “Place Order” button, “ ‘the problem with merely displaying a hyperlink in a prominent or conspicuous place is that, without notifying consumers that the linked page contains binding contractual terms, the phrase “terms of use” may have no meaning or a different meaning to a large segment of the [i]nternet-using public.’ [Citation.]” (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 469 (Sellers).) “In other words, a conspicuous ‘terms of use’ hyperlink may not be enough to alert a reasonably prudent Internet consumer to click the hyperlink.^” (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 867, fn. 5 (Long).)

The arguments advanced by Boot Barn fail to show why the hyperlink, which generally references or describes nonspecific “conditions of use”, was effective to alert or notify Licea that he should click that hyperlink because it would redirect Licea to a contractual agreement to arbitrate which is binding upon the placing of an order through the Website. By way of example, the hyperlink does not include any language which prominently or obviously references arbitration or the terms of the Agreement. The “conditions of use” hyperlink also does not on its face inform a purchaser of Boot Barn’s products that the hyperlink will redirect that purchaser to a binding agreement to arbitrate, or that any agreement to arbitrate would be binding upon placement of an order. Boot Barn also fails to show why the hyperlink sufficiently informed Website users that the generally described “conditions of use” include the Agreement to which Boot Barn wished to bind its consumers.

Furthermore, as discussed above, though Boot Barn relies on its customers to voluntarily click the “conditions of use” hyperlink before placing an order as a manifestation of that customer’s assent to the Agreement, there is no information which would allow the court to conclude that Licea was on notice of the terms of the Agreement or that the Agreement would become binding upon the purchase of the Product. The present record also is insufficient to show that Licea was sufficiently notified that the act of clicking the “Place Order” button would constitute Licea’s acceptance of the terms of the Agreement. (See, e.g., Berman v. Freedom Financial Network, LLC (9th Cir. 2022) 30 F.4th 849, 856-858.)

“ “ ‘[W]hile failure to read a contract before agreeing to its terms does not relieve a party of its obligations under the contract, [citation], the onus must be on website owners to put users on notice of the terms to which they wish to bind consumers. Given the breadth of the range of technological savvy of online purchasers, consumers cannot be expected to ferret out hyperlinks to terms and conditions to which they have no reason to suspect they will be bound.” ’ [Citations.]” (Sellers, supra, 73 Cal.App.5th at p. 470, original italics; see also Long, supra, 245 Cal.App.4th at p. 867 [stating that “[o]nline retailers would be well-advised to include a conspicuous textual notice with their terms of use hyperlinks going forward...”].) For these and all further reasons discussed above, Boot Barn has failed to meet its burden to show that there exists an agreement to arbitrate the present dispute. Therefore, the court will deny the motion.

As to Boot Barn’s request for an order striking class allegations, though Boot Barn may raise an appropriate pleading challenge in a separately filed noticed motion, that challenge is not appropriately presented as an alternative ground for a motion which is primarily directed to whether Licea agreed to arbitrate the present dispute. The manner in which Boot Barn has alternatively presented its pleading challenge also deprives Licea of a full opportunity to oppose that challenge. For these reasons, the court will disregard Boot Barn’s request for an order striking class allegations, without prejudice to any future filing and service by Boot Barn of an appropriate noticed pleading challenge.