SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

NIEVE MCGOWAN, individually and on behalf of all others similarly situated,

Plaintiff,

vs.

ARRAYIT CORPORATION, a Nevada corporation; PINNER USA, INC., a New Jersey corporation; and DOES 1 through 100, inclusive,

Defendants.

Case No. 2019-1-CV-346097

TENTATIVE RULING RE: MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on September 20, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION
II.
This is a putative consumer class action. According to the allegations of the Complaint, filed on April 4, 2019, defendants Arrayit Corporation and Pinner USA, Inc. (together, “Defendants”) manufacture, market, sell, and/or distribute a “food intolerance test” called PinnerTest. (Complaint, ¶ 1.) PinnerTest utilizes Immunoglobulin Analysis (“IgG Testing”) to screen for certain antibody proteins in the blood that are supposedly telltale signs of food intolerances. (Id. at ¶ 2.) Defendants market IgG Testing as “the most precise and scientifically accepted testing method … to determine food sensitivities.” (Id. at ¶ 4.) Plaintiff alleges that Defendants’ representations regarding PinnerTest are untrue because IgG Testing is ineffective in predicting food intolerances. (Id. at ¶ 5.)

The Complaint sets forth the following causes of action: (1) Violation of California Civil Code § 1750, et seq.; (2) Violation of Business & Professions Code § 17500, et seq.; (3) Violation of Business & Professions Code § 17200, et seq. (Unlawful Conduct); and (4) Violation of Business & Professions Code § 17200, et seq. (Unfair and Fraudulent Conduct).

Defendants now move to compel arbitration and stay the action.

III. MOTION TO COMPEL ARBITRATION
IV.
“A party who claims that there is a written agreement to arbitrate may petition the superior court for an order to compel arbitration.” (Banner Entertainment, Inc. v. Superior Court (Alchemy Filmworks, Inc.) (1998) 62 Cal.App.4th 348, 356; see also Code Civ. Proc., § 1281.2) “[T]he petitioner bears the burden of establishing the existence of a valid agreement to arbitrate, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Ibid.)

Defendants state that when Plaintiff purchased the food intolerance test, she signed a contract agreeing to be bound by an arbitration provision requiring arbitration in New York pursuant to New York law. Defendants provide a sample copy of the arbitration provision in the subject contract. (See Declaration of Ferit Rahvanci in Support of Specially Appearing Defendants’ Motion to Compel Arbitration and Stay Proceedings, Ex. A.)

Plaintiff argues the arbitration provision is not enforceable because: (1) the arbitration provision is illusory and lacks consideration; (2) the dispute is outside the scope of the arbitration provision; and (3) the arbitration provision is unconscionable.

With respect to Plaintiff’s first argument – that the arbitration provision is illusory – Plaintiff asserts the only agreement she received at the point of sale was a purchase agreement, which contained no arbitration provision. Rather, the arbitration provision was included with a “Certification of Understanding and Release from Liability” (“COU”) which was shipped with the testing kit. Plaintiff argues the arbitration provision in the COU is illusory and unenforceable because Defendants provided no consideration for it.

Generally, a contract is illusory where one party provides no legal consideration. (Martin v. World Sav. and Loan Ass’n (2001) 92 Cal.App.4th 803, 809.) Further, promising to do what one already is legally bound to do cannot be consideration for a promise. (Dole Food Co., Inc. v. Superior Court (2015) 242 Cal.App.4th 894, 911.)

Plaintiff provides evidence regarding the purchasing process for PinnerTest, which is ordered on the PinnerTest website. Among the pages on the website are terms and conditions that apply to all purchases of “Test(s).” (Declaration of Gillian L. Wade in Support of Plaintiff’s Opposition to Motion to Compel Arbitration (“Wade Decl.”), Ex. 1, p. 25.) There is no arbitration provision in the terms and conditions. (See id. at pp. 25-29.) The terms and conditions appearing on the website state: “A contract shall come into effect when PINNERTEST responds to The Customer by email upon receipt by PINNERTEST from The Customer of an order using the website specifying the Test(s) that The Customer wishes to purchase, or when the customer makes a purchase with PINNERTEST directly.” (Ibid.) Plaintiff provides an email received from Defendants thanking her for purchasing the Pinnertest Food Intolerance Test kit. (Wade Decl., Ex. 2.) Plaintiff’s evidence demonstrates she purchased a PinnerTest kit and therefore entered into a contract regarding the purchase.

Defendants argue in their reply papers that Plaintiff’s evidence is deficient because Plaintiff purchased the test on December 19, 2018, but the evidence regarding the website is from February 2019. Defendants also point out that the Wade Declaration only purports to provide “portions” of Defendants’ website. Defendants contend the portions of the website from February 2019 are not evidence of what the website actually stated on December 19, 2018, when Plaintiff made the purchase.

While it is true Plaintiff purchased the test in December 2018, not in February 2019, Defendants make no assertion the website changed in any material way in the course of those approximately two months. The Court finds the evidence regarding the purchasing process for PinnerTest and the applicable terms and conditions is sufficiently reliable for Plaintiff to meet her burden of raising a defense by a preponderance of the evidence.

The evidence demonstrates Plaintiff and Defendants entered into a contract at the time of purchase. That contract required Plaintiff to pay for the test and for Defendants to provide the test. Later, after the COU that included the arbitration provision was received by Plaintiff and signed, there was nothing additional that Defendants were agreeing to provide. Defendants had already entered into a contract with Plaintiff to provide the test. Consequently, Defendants gave no consideration in exchange for Plaintiff signing the COU. Under basic principles of contract law, the COU, including the arbitration provision, cannot be unenforced. Accordingly, Defendants’ motion to compel arbitration must be DENIED.

The Court will prepare the final order if this tentative ruling is not contested.