1

Filed 8/24/21 Chen v. eBay CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

FIRST APPELLATE DISTRICT

DIVISION TWO

THEO CHEN et al.,

Plaintiffs and Appellants,

v.

EBAY, INC.,

Defendant and Respondent.

 A158417

 (Alameda County

Super. Ct. No. 

RG15780778)

Plaintiffs and appellants are 10 individuals who sell (or sold) products 

on eBay. In 2015, they filed a putative class action suit against eBay and 

PayPal, the entity that provided online payment services. Some four years 

later, and following extensive discovery, plaintiffs filed a motion for class 

certification seeking certification of two classes: one comprised of sellers 

involved in disputes with buyers, the other comprised of sellers adversely 

affected by eBay’s amended performance ratings system. In a 

comprehensive, thoughtful decision that thoroughly analyzed the law and the 

evidence, the trial court denied certification of both classes. As to the first 

class, the court found that plaintiffs had failed to show a “uniform practice” 

that could be subject to class treatment and therefore common issues would 

not predominate, and as to the second, that the proposed class would not be 

“manageable or superior.” 
2

Plaintiffs appeal, asserting as to the first class that the trial court 

abused its discretion, and as to the second that plaintiffs “established liability 

through common proof.” We reject both arguments, and we affirm, 

concluding that the trial court properly exercised its broad discretion in 

denying class certification. 

BACKGROUND

The Parties and the Pleadings

Plaintiffs and appellants are 10 California residents who are current or 

former sellers on eBay, all of whom registered for accounts there and had 

active listings of goods, or sold goods, on eBay’s website.1

Defendant and respondent is eBay, a global e-commerce platform 

connecting buyers and sellers, alleged by plaintiffs to have well over 

100,000,000 active users. 

Plaintiffs filed their original complaint in August 2015. It was a 

putative class action that named two defendants, eBay and PayPal, the entity 

that provided online payment services for individuals and businesses. In 

November 2015, the case was removed to Federal District Court, and four 

months later remanded back to superior court. A first amended complaint 

was filed, and both defendants filed demurrers, rulings on which led to a 

second amended complaint filed in February 2017, the operative complaint 

here. 

The second amended complaint alleged 23 causes of action, 13 against 

eBay alone, seven against PayPal alone, and three against both defendants. 

Both defendants demurred again, the upshot of which was an order of August 

1 Plaintiffs are Theo Chen, Edgar Amirkhanyan, Eugene Cobb, Gary 

George, Nazar Pailevanian, Nicole Pitteloud, Kim Bunch, Francis Jancik, 

John Hamisch, and Nicole Jones. An eleventh plaintiff was dismissed. 
3

17, 2017, sustaining the demurrer without leave to amend to all but three 

causes of action—the first, for breach of contract against both defendants; the 

17th, for violation of the covenant of good faith and fair dealing against eBay;

and the 23rd against PayPal.2 Plaintiffs sought writ review of the August 17 

order, which we denied. 

The first cause of action focuses on disputes between buyers and 

sellers, and alleges that in ruling on such disputes eBay “almost always” 

rules in favor of buyers. Such practice, plaintiffs allege, breaches the terms 

in eBay’s user agreement, which plaintiffs allege requires eBay to consider 

evidence submitted by the parties to the dispute. The claim asserted in this 

cause of action came to be referred to below the “money back guarantee” 

claim, a label we sometimes use here.

The 17th cause of action focuses on how eBay rates the performance of 

sellers on its site, and alleges that in August 2014, and without warning, 

eBay updated the criteria used to rate sellers’ performance and unfairly 

applied the ratings system retroactively. The claim asserted in this cause of 

action came to be referred to below as the “sellers rating system” claim, a 

label we sometimes use here.

In January 2018, the case was reassigned for all purposes to the 

Honorable Winifred Smith, a most experienced Superior Court Judge. 

The Motion for Class Certification

On May 3, 2019, plaintiffs filed a motion for class certification seeking 

certification of classes for both causes of action. The motion was accompanied 

2 In July 2019, plaintiffs moved to dismiss the two claims against 

PayPal, and pursuant to a stipulated request the court entered judgment for

PayPal. Plaintiffs appealed, and on March 2, 2021, we filed our opinion 

affirming the judgment: Chen v. PayPal (2021) 61 Cal.App.5th 559. 
4

by numerous declarations—20 to be exact—many of which were from people 

who were sellers on eBay. 

As to the first cause of action, plaintiffs sought to certify a money back 

guarantee class consisting of “all persons or entities who are domiciled in 

California who, at any time between January 1, 2010 and December 31, 2018, 

were sellers listing and selling items using the eBay internet platform.” 

Plaintiffs asserted that class certification was proper given the alleged 

“common practice . . . not to consider the evidence of the eBay sellers” in 

resolving buyer-seller disputes, essentially to “ensure” that buyers cannot 

lose dispute resolution cases.

As to the 17th cause of action plaintiffs’ sought to certify a sellers 

rating system class consisting of “all persons or entities who are domiciled in 

California who were sellers listing and selling items on the eBay internet 

platform continuously during the time period of August 20, 2013 through 

August 20, 2014.” 

On June 14, eBay filed opposition to the motion, accompanied by 

declarations of two eBay employees, Kristine Diemoz and Suman Chhabria, 

the latter of whom was eBay’s director of buyer protection. The declarations 

authenticated almost 200 pages of exhibits. 

On July 8, plaintiffs filed their reply, along with objections to the 

Diemoz and Chhabria declarations. 

On July 15, eBay responded to plaintiffs’ evidentiary objections. It also 

filed its own objections to certain testimony in the declarations plaintiffs had 

filed in support of their motion. The next day plaintiffs submitted a letter 

objecting to the court giving any consideration to eBay’s objections. 

Following a July 19 hearing, on July 26, Judge Smith filed her order 

denying class certification, a comprehensive, seven-page, single-spaced 
5

analysis. The order began with a description of plaintiffs’ claims, followed by 

an exhaustive citation of class action law interspersed with her analysis of 

how the issues and evidence before her interacted with that law. Specifically,

following discussion of the “standard for class certification,” Judge Smith 

described—and analyzed—“ascertainability,” “numerosity,” “predominance of 

common questions of law and fact,” “commonality,” “manageability and 

superiority,” and “typicality,” pertinent portions of which analysis will be 

described in detail below. Suffice to say here that as to the money back 

guarantee claim, Judge Smith found that plaintiffs had failed to show a 

“uniform practice” that could be subject to class treatment and therefore 

common issues would not predominate, and as to the sellers rating systems 

claim, she found that the proposed class would not be “manageable or 

superior.” 

Judge Smith’s order also sustained eBay’s objections to the hearsay 

statements in the declarations plaintiffs had submitted and overruled 

plaintiffs’ objections to the Diemoz and Chhabria declarations. 

The Motion for Reconsideration

On August 13, plaintiffs filed a motion for reconsideration, eBay filed 

opposition, and plaintiffs a reply. Following a hearing on September 13, on 

September 20, Judge Smith filed her six-page order denying it. After first 

holding that the motion did not identify any new evidentiary facts that could 

not have been presented in the original motion and did not identify any new 

law, she went on to specifically confirm the reasons why the seller ratings 

claim would be unmanageable as a class, as will be quoted below.

On September 20, plaintiffs filed their appeal.
6

DISCUSSION

The Law and the Standard of Review

Class actions are statutorily authorized by Code of Civil Procedure 

section 382: “[W]hen the question is one of a common or general interest, of 

many persons, or when the parties are numerous, and it is impracticable to 

bring them all before the court, one or more may sue or defend for the benefit 

of all.” In order to obtain class status, the class action proponent bears the 

burden of establishing the propriety of class certification, which requires that 

the proponent “must establish the existence of both an ascertainable class 

and a well-defined community of interest among the class members. 

[Citations.] The community of interest requirement involves three factors: 

‘(1) predominant common questions of law or fact; (2) class representatives 

with claims or defenses typical of the class; and (3) class representatives who 

can adequately represent the class.’ [Citation.]” (Linder v. Thrifty Oil Co. 

(2000) 23 Cal.4th 429, 435 (Linder).) And “[t]o establish the requisite 

community of interest, the proponent of certification must show . . . that 

questions of law or fact common to the class predominate over the questions 

affecting the individual members . . . . In essence, this means ‘each member 

must not be required to individually litigate numerous and substantial 

questions to determine his [or her] right to recover following the class 

judgment; and the issues which may be jointly tried, when compared with 

those requiring separate adjudication, must be sufficiently numerous and 

substantial to make the class action advantageous to the judicial process and 

to the litigants.’ ” (Washington Mutual Bank v. Superior Court (2001) 

24 Cal.4th 906, 913–914, citations omitted.)

As to how a ruling on class certification is reviewed, Brinker Restaurant 

Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1022 (Brinker) confirms the 
7

law: “On review of a class certification order, an appellate court’s inquiry is 

narrowly circumscribed. ‘The decision to certify a class rests squarely within 

the discretion of the trial court, and we afford that decision great deference 

on appeal, reversing only for a manifest abuse of discretion: “Because trial 

courts are ideally situated to evaluate the efficiencies and practicalities of 

permitting group action, they are afforded great discretion in granting or 

denying certification.” [Citation.] A certification order generally will not be 

disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on 

improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]’ 

(Fireside Bank v. Superior Court [(2007)] 40 Cal.4th [1069,] 1089; see also 

Hamwi v. Citinational-Buckeye Inv. Co. (1977) 72 Cal.App.3d 462, 472 [‘So 

long as [the trial] court applies proper criteria and its action is founded on a 

rational basis, its ruling must be upheld’].) Predominance is a factual 

question; accordingly, the trial court’s finding that common issues 

predominate generally is reviewed for substantial evidence. (Sav-On Drug 

Stores, Inc. v. Superior Court [(2004)] 34 Cal.4th [319,] 328–329.)” 

In Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, 1354–1355, 

we affirmed the denial of class certification. Doing so, we discussed the 

applicable law, including that we review an order denying class certification 

under the abuse of discretion standard. That standard presents a daunting 

challenge to plaintiffs here, as our highest court has described: plaintiffs 

must demonstrate that Judge Smith’s order was “so irrational or arbitrary 

that no reasonable person could agree with it.” (Sargon Enterprises, Inc. v. 

University of Southern California (2012) 55 Cal.4th 747, 773.) This hardly 

describes Judge Smith’s order here. 
8

Judge Smith Did Not Abuse Her Discretion in Denying 

Certification of the Sellers’ Rating System Claim

Plaintiffs’ first argument is that Judge Smith abused her discretion 

with respect to the sellers’ rating system class when she determined it was 

unmanageable.3 Plaintiffs have not demonstrated any such abuse—indeed, 

they really do not even try.

By way of background, eBay requires that in order to sell on its 

marketplace, a seller must meet minimum performance standards. And one 

who fails to meet the minimum standards may have his or her account

restricted, limited, or suspended. The seller performance standards were

first introduced by eBay in 2009, and updates were made in 2011 and 2012. 

Then, on March 11, 2014, eBay published its spring seller update announcing 

among other things that beginning with the August 20, 2014 evaluation, 

eBay would again be updating the seller performance standards, this time by 

moving to a single measure—what eBay calls the “transaction defect rate”

and plaintiffs call the “seller defect” policy.

The new policy is entitled “Seller Performance Standards,” and reads 

as follows: “If you don’t meet the minimum performance standards, we may 

put limits on your selling activity or lower your search placement until your 

performance improves. We may also restrict you from selling items on eBay 

if your performance falls significantly below the minimum requirements.” 

And it adds this: “Note: We monitor eBay.com for sellers who may be 

creating poor buying experiences at higher rates, in shorter time frames, or in 

different areas than other sellers, according to these standards. These 

3 Plaintiffs have chosen to address the issues in reverse order, and 

begin with the 17th cause of action and argument as to the sellers’ rating 

system class, to which they direct over 75 percent of their argument. We 

thus proceed in the order plaintiffs have chosen.
9

accounts may be restricted, limited, suspended, or have their seller level 

changed to below standard.” 

The March spring seller update was e-mailed to all eBay members and 

delivered to their eBay message centers.4 And between April and August 

2014, eBay reminded sellers about the updated standards; it also provided 

resources and guidance to sellers as to how to ensure that their seller 

performance ratings would not be adversely affected by the update. 

As was the case under the earlier seller performance evaluations, the 

August 2014 standards used a “lookback” period to evaluate a seller’s 

performance on prior transactions. That is, sellers were evaluated on their 

transactions occurring within (1) the preceding three months for “highvolume” sellers or (2) the preceding 12 months for “low-volume” sellers.5 

eBay also provided various protection measures to ensure that the 2014 seller 

rating update did not unfairly affect sellers. 

The above evidence was part of the voluminous record before Judge 

Smith when plaintiffs sought class certification on the seller rating system 

claim, certification Judge Smith denied, finding that “[t]he seller ratings

system claim would not be manageable or superior to individual claims.”

This was her detailed analysis:

4 The user agreement provides that eBay “may amend this Agreement 

at any time by posting the amended terms on [www.eBay.com],” and that 

eBay “will notify [users] through the eBay Message Center” and/or by email 

of the amended terms. 

5 “High-volume” sellers were those with 400 or more transactions 

during the preceding three months; those with fewer than 400 were “lowvolume.” Sellers who were evaluated on a three-month lookback in August 

2014 were aware of the new standards at all times and had ample notice of 

the new requirements in order to make any necessary changes to their 

business practices. 
10

“MANAGEABILITY AND SUPERIORITY

“The seller rating system claim would not be manageable or superior to 

individual claims.

“Assuming the procedure and/or substance of the August 2014 change 

to the Seller Rating System were a breach of the implied contractual duty of 

good faith, then the court would need to provide a manageable and superior 

remedy. The court could determine class wide damages, but that would not 

be appropriate on the facts of this case due to the individual variations in 

causation and damages. The court could set a phase two of the trial for 

hearing individualized claims. (Int’l Bhd. of Teamsters v. United States 

(1977) 431 U.S. 324, 360–361.) Individualized hearings would not be superior 

to permitting individual small claims actions. California law suggests that a 

class action that requires individuals to make individual claims is 

inconsistent with the purpose of class actions. (Hypertouch v. Superior Court 

(2005) 128 Cal.App.4th 1527, 1543–1550.)

“The court could order injunctive relief such as directing eBay to reopen 

all the complaints in the relevant time period, to permit [sellers] to submit 

new information, to reevaluate the claims and to adjust seller status 

accordingly. That would be practicable for the court, but it would return the 

sellers to the eBay dispute resolution system that they assert is unfair.

“Following review and resolution of individual claims, whether by the 

court, a hearing officer, or by eBay, the court would need to determine 

consequential damages. The claimed injury is not limited to the individual 

disputes and also encompasses the consequential damage attributable to the 

changes in seller status. [Citation.] The members of the class would need to 

present evidence of past average sales, actual sales after the August 2014 

seller status adjustment, and hypothetical future absent the August 2014 
11

seller status adjustment. Even if the court established a truncated procedure 

for consequential damages, this would likely be unmanageable and in conflict 

with the California law that suggests individual claims procedures are 

disfavored. (Hypertouch v. Superior Court, supra, 128 Cal.App.4th at 

pp. 1543–1550.)”

As noted above, Judge Smith later addressed this issue in connection 

with plaintiffs’ motion for reconsideration where, denying reconsideration, 

she elaborated on the reasons for her conclusion on the seller ratings system 

class: 

“First, ‘[i]n this case, the variations in the potential damages suffered 

by persons with seller ratings system claims would make it impracticable to 

determine class-wide aggregate damages’ because ‘[t]he claimed injury is not 

limited to the individual disputes and also encompasses the consequential 

damage attributable to the changes in seller status.’ [Citation.]

“Second, . . . ‘likely complications of managing the variations in the 

claims of the putative class members would outweigh the likely benefits of 

class certification.’ ” Thus, plaintiffs’ seller ratings claim would be 

unmanageable as a class action because the extensive individualized 

inquiries needed to determine “causation” and “damages” issues would at a 

minimum require: “[t]he members of the class . . . to present evidence of past 

average sales, actual sales after the August 2014 seller status adjustment, 

and hypothetical future sales absent the August 2014 seller status 

adjustment. 

“Third, ‘[e]ven if the trier of fact could determine aggregate damages, 

the apportionment among the members of the class would pose greater 

challenges than usual due to the individual variations in the claims for lost 

profits. The trial would therefore have to be a two-stage trial with class-wide 
12

damages followed by individualized hearings on direct and consequential 

damages. Individualized hearings would not be superior to permitting 

individual small claims actions.’ ”

In sum, Judge Smith concluded that it would be unwieldly to make 

such individualized determinations across numerous class members, and 

thus the proposed class was not manageable or superior to individualized 

claims. This conclusion supports denial of class certification. (Diamond v. 

General Motors Corp. (1971) 20 Cal.App.3d 374, 378 [class proceeding 

unmanageable where there were significantly disparate interests within 

alleged class, and the right of each member to recover, and the amount of 

recovery, depended on substantial individual issues].) As a leading

commentator puts it, the “most likely to be unmanageable are those involving 

myriad individual issues.” (2 Newberg on Class Actions (5th ed. 2021) 

§ 4:72.) Or as Brinker succinctly puts it, manageability is an issue for the 

“trial court to decide . . . in the fullness of its discretion.” (Brinker, supra,

53 Cal.4th at p. 1055.) That discretion was not abused here.

Plaintiffs do not rebut—indeed, even attempt to rebut—any of Judge 

Smith’s findings, offering no argument that causation could be determined on 

a class-wide basis or that assessing the damages could be done without 

numerous individualized inquiries into complex questions of consequential 

lost profits and other claimed damages. Rather, plaintiffs assert that Judge 

Smith found that common issues would predominate and, pointing to her 

tentative ruling as to manageability, make the accusation that she “did an 

about-face and stated that the seller [ratings] claim as a class action would 

not be manageable or superior to individual claims.” As we understand it, 

plaintiffs argue that because Judge Smith found common questions 

predominated as to liability, she had to find that the class would be 
13

manageable and superior. This is wrong, as Duran v. U.S. Bank National 

Assn. (2014) 59 Cal.4th 1 (Duran)—a case Judge Smith cited—makes clear.

Duran involved the “exceedingly rare beast: a . . . class action that 

proceeded through trial to verdict.” (Duran, supra, 59 Cal.4th at p. 12.) The 

trial court returned a verdict of some $15 million with an average recovery of 

over $57,000 per class member. The Court of Appeal reversed and ordered 

decertification. The Supreme Court affirmed, and decertified the class action,

with language particularly apt here. The Court first noted that it has 

“cautioned that class treatment is not appropriate ‘if every member of the 

alleged class would be required to litigate numerous and substantial 

questions determining his individual right to recover . . . .’ ” (Id. at p. 28, 

citing City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.) And on 

the next page, the Court instructed that “[t]rial courts must pay careful 

attention to manageability when deciding whether to certify a class action. 

In considering whether a class action is a superior device for resolving a 

controversy, the manageability of individual issues is just as important as the 

existence of common questions uniting the proposed class.” (Duran, supra, 

59 Cal.4th at p. 29.) In short, “[E]ven if questions of law or fact predominate, 

the lack of superiority provides an alternative ground to deny class 

certification.” (Basurco v. 21st Century Insurance Co. (2003) 108 Cal.App.4th 

110, 120.)

As Duran instructed, Judge Smith paid “careful attention” to 

manageability, and based her denial of class certification of the seller ratings 

system class on plaintiffs’ failure to adequately address manageability and 

superiority concerns, concluding that individualized variations in causation 

and damages made class-wide resolution not superior to separate, individual 

adjudication of grievances. 
14

Citing without discussion many cases and various boilerplate principles 

of class action law, plaintiffs assert that “[t]he necessity for an individual 

determination of damages does not weigh against class certification.” Maybe 

not. But plaintiffs’ assertion ignores that the setting here is not simply about 

individualized damages, but numerous individualized damage and causation 

issues. For example, certifying a seller ratings class would require the trial 

court to look at transactions during the time period of August 20, 2013 

through August 20, 2014, to determine which, if any, caused any reduction in 

their seller ratings, which look would involve issues such as these: did the 

transaction accrue a defect; was the defect part of the new rubric; and did 

eBay actually include the defect in the seller’s assessment or did the seller 

benefit from the protections eBay employed to protect sellers from falling 

below standard? In other words, the claim that eBay “retroactively” applied 

the 2014 seller ratings update to intentionally downgrade a seller’s rating 

status would inevitably require numerous individualized inquiries into the 

timing and nature of the defects that may have caused a seller to be 

downgraded, and whether the downgraded status actually resulted in selling 

limits or other consequences—not to mention an analysis of whether any 

particular seller would have retained his or her previous status under the 

prior ratings standards. On top of all that, it was undisputed that some 

plaintiffs were not adversely affected by the new standards. 

Plaintiffs propose, for the first time on appeal, that “the possible use of 

survey evidence or testimony from a random representative sampling of class 

members can certainly be explored to facilitate the necessary calculations.” 

Passing over the tardiness of the proposal, it is manifestly insufficient. As 

our colleagues in Division One put it: “It is not sufficient, in any event, 

simply to mention a procedural tool; the party seeking class certification 
15

must explain how the procedure will effectively manage the issues in 

question, and plaintiff has failed to do so here.” (Dunbar v. Albertson’s Inc. 

(2006) 141 Cal.App.4th 1422, 1432; see also Block v. Major League Baseball 

(1998) 65 Cal.App.4th 538, 545 [denying certification where plaintiff did not 

present a concrete plan, the court said, “We cannot conclude the trial court 

erred when it failed to consider something the plaintiffs never proposed”].)

In one paragraph in their brief, plaintiffs assert that “the issue of 

‘manageability’ was never mentioned in any of the papers [here],” nor in the 

tentative ruling, nor at oral argument. Assuming for purposes of discussion 

that plaintiffs’ representations are accurate,

6 we do not understand how this 

avails them. As noted, the burden is on plaintiffs to demonstrate that class 

certification is appropriate, a burden that requires them to demonstrate, 

among other things, “substantial benefits from certification that render 

proceeding as a class superior to the alternatives.” (Brinker, supra, 

53 Cal.4th at p. 1021)—a burden, we hasten to add, plaintiffs acknowledged 

below.7 Plaintiffs have not made the required demonstration.

6 eBay asserts that “[t]o suggest that the trial court injected this issue 

into the case is wrong. The logistical challenges the trial court considered—

that it would be impossible to resolve unique questions of causation and 

damages across numerous putative class members—were briefed by eBay, 

responded to by [plaintiffs], addressed at the hearing, and then litigated a 

second time on [plaintiffs’] motion for reconsideration.” 

7 In their class certification motion plaintiffs acknowledged that: “The 

party advocating class treatment must demonstrate . . . substantial benefits 

from certification that render the proceeding as a class superior to the 

alternatives.” 
16

Judge Smith’s Denial of a Money Back Guarantee Class is 

Supported by the Record

As noted, plaintiffs’ motion also sought to certify a money back 

guarantee class consisting of “all persons or entities who are domiciled in 

California who, at any time between January 1, 2010 and December 31, 2018, 

were sellers listing and selling items using the eBay internet platform.” 

Their essential position was that class certification was proper given the 

alleged “common practice . . . not to consider the evidence of the eBay sellers” 

in resolving buyer-seller disputes, allegedly to “ensure” that buyers cannot 

lose dispute resolution cases. Plaintiffs’ second argument here is that Judge 

Smith erred in denying certification of this class because plaintiffs 

“established by substantial evidence [eBay’s] liability through common proof.” 

It is probably enough to say that assuming plaintiffs’ argument is 

correct—that they “established by substantial evidence” their claim for their 

position—the issue is whether there is substantial evidence supporting Judge 

Smith’s ruling. (Wet Seal, supra, 210 Cal.App.4th 1341; Brinker, supra, 

53 Cal.4th 1004.) As Brinker puts it, a ruling on certification “will not be 

disturbed unless . . . it is unsupported by substantial evidence.” (Id. at 

p. 1022.) There is substantial evidence here—as plaintiffs’ brief as much as 

admits. 

The user agreement provides that “[b]uyers and sellers permit [eBay] 

to make a final decision at our sole discretion, on any claim that a buyer files 

with eBay under the eBay Buyer Protection Policy.” The money back 

guarantee applies when a buyer reports or complains that an item was not 

delivered or was not as described in the listing. Then, after a complaint has 

been submitted, eBay opens a claim, assigns it a number, and informs the 

seller a complaint has been registered. The seller is given the first 

opportunity to resolve the complaint independently, without eBay’s 
17

intervention. If the buyer and seller are unable to resolve the dispute after 

three business days, either party can escalate the claim and ask eBay for 

assistance. At that point, an eBay customer service representative enters the 

picture.

The customer service representative is expressly instructed to resolve 

the claim based on the facts of a particular case. As plaintiffs acknowledged 

below, customer service agents look at the evidence, including messages 

between the buyer and the seller, the listing information for the item, the

historical buying/selling patterns of the parties, and information regarding 

the particular transaction, such as delivery status. If the agent believes more 

information is needed, he or she may place the claim on hold and request 

additional information or documentation from the parties. And if the 

decision is in favor of the buyer, a seller who disagrees may appeal within 30 

days and may submit additional information or documentation for 

consideration by a second eBay customer service agent. 

Plaintiffs’ brief discusses at some length the testimony of eBay 

employee Chhabria. In plaintiffs’ words, eBay “claims that its policies clearly 

establish that eBay considers evidence provided by sellers in deciding the 

outcome of buyer/seller disputes. The only evidence submitted by eBay 

supporting such a claim is provided in the declaration of Ms. Chhabria.” 

While we do not agree that Chhabria’s declaration is the “only evidence,” it is,

as plaintiffs admit, evidence, which evidence is by itself sufficient, as we 

confirmed in Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 

767–768: “The testimony of one witness may provide substantial evidence.” 

(See generally, Eisenberg, et al., Cal. Practice Guide: Civil Appeals and 

Writs (The Rutter Group 2020) ¶ 8:52. (Eisenberg).)
18

Chhabria, eBay’s director of buyer protection, testified that eBay has a 

policy and practice of reviewing seller evidence and ruling in favor of sellers 

whenever appropriate. And to substantiate that testimony, Chhabria 

attached to her declaration eBay customer-service training manuals that 

show how eBay customer service agents are trained to resolve buyer-seller 

disputes. Those manuals direct the agents to consider seller evidence; they 

also describe the circumstances that should lead to a decision of “buyer fault,” 

all of which means eBay customer service agents are trained to find against 

buyers—and in favor of sellers—where the evidence suggests that is the 

proper outcome. 

Chhabria’s evidence also demonstrated that between January 1, 2010, 

the beginning of the class period, and December 31, 2018, claims were 

decided in favor of buyers approximately 69.8 percent of the time. That 

means, of course, that over 31 percent of disputes were decided in favor of 

sellers.8 As Judge Smith put it, this statistic “strongly suggests that in a 

sizeable proportion of the claims [eBay] was considering the evidence offered 

by the sellers and that it did not have a consistent practice of deciding claims 

in favor of buyers.” This inference from eBay’s statistical evidence was 

reasonable and cannot be disturbed on appeal. (Sav-On Drugs, supra, 

34 Cal.4th at pp. 328–329.)

Beyond Chhabria’s declaration, other documentation in the record 

demonstrates that eBay devotes significant resources to identifying buyers 

8 Indeed, some plaintiffs admitted they won disputes with buyers, or 

lost disputes as buyers, during the relevant period. For example, plaintiff 

Junes won approximately 15 percent of the time; plaintiff Amrikhanyan had 

situations where he appealed and had an adverse result overturned in his 

favor; and plaintiff Cobb lost the only claim he had as a buyer. Moreover, 

some of the non-party declarations submitted by plaintiffs confirmed that 

those sellers won disputes with buyers after eBay considered their evidence. 
19

who are abusing eBay’s policies and to protecting sellers from “fraudulent 

returns.” These documents show that eBay had no policy for uniformly 

ignoring seller evidence and siding with buyers, and instead show just the 

opposite. 

Plaintiffs assert they “provided substantial evidence in the form of 

admissions by several eBay customer service agents” allegedly to the 

contrary. The problem for plaintiffs is that, as noted, Judge Smith sustained 

eBay’s objections to the claimed evidence on which plaintiffs rely. So, to rely 

on this is improper.

9

In any event, Judge Smith addressed the declarations and weighed 

their effect, ultimately to conclude she was not “persuaded,” finding that 

“given the volume of transactions and resulting complaints, it is inevitable 

that there will be many persons who disagree with the result of the dispute 

resolution process.” Moreover, she explained, citing Kizer v. Tristar Risk 

Mgmt. (2017) 13 Cal.App.5th 830, 844 and Dunbar v. Albertson’s, Inc., supra, 

141 Cal.App.4th 1422, this anecdotal evidence was not enough to show a 

9 In a one-paragraph argument at the end of their brief, plaintiffs 

contend that the statements made by the customer service agents were 

admissible under Evidence Code sections 1222 and 1250, subdivision (a). 

Plaintiffs cite nothing in support of the brief argument, but instead refer back 

to their position in the trial court. This is improper. As the leading appellate 

practice guide puts it, “No incorporation of trial court argument by 

reference: A brief may not ‘incorporate by reference’ an argument contained 

in a document filed in the superior court (e.g., a supporting memorandum). 

Such practice does not comply with the CRC [California Rules of Court, rule] 

8.204(a)(1)(B) requirement that an appellate brief ‘support each point by 

argument and, if possible, by citation to authority.’ (Salehi v. Surfside III 

Condominium Owners Ass’n. (2011) 200 Cal.App.4th 1146, 1162; Parker v. 

Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 290–291—appellate 

court disregarded arguments from trial court points and authorities 

‘incorporated’ by reference into opening brief.” (Eisenberg, supra, ¶ 9:162.5.) 
20

practice sufficiently uniform to subject eBay to a class-wide breach of contract 

claim that would reach millions of user disputes. (See Brinker, supra, 

53 Cal.4th at p. 1052 [“anecdotal evidence of a handful of individual 

instances” does not establish “substantial evidence [of] a uniform, 

companywide policy . . .”]; Arenas v. El Torito Restaurants, Inc. (2010) 

183 Cal.App.4th 723, 730 [individual declarations insufficient for class 

certification, as plaintiffs must provide “common evidence to support 

extrapolation from individual experiences to a class-wide judgment that is 

not merely speculative”].) Plaintiffs ignore Judge Smith’s analysis, directing 

us to the anecdotes without mentioning that Judge Smith found them 

unpersuasive. 

In sum, Judge Smith found that plaintiffs had failed to show eBay had 

a “uniform practice” of ignoring seller evidence and ruling in favor of buyers 

inconsistent with its written policy. (See Brinker, supra, 53 Cal.4th 

at p. 1051 [requiring proof of a “systematic company policy”]; ABM Industries 

Overtime Cases (2017) 19 Cal.App.5th 277, 310 [inquiring into “uniform 

practice” of defendant]; Cruz v. Sun World Internat., LLC (2015) 

243 Cal.App.4th 367, 384, disapproved on another ground in Noel v. Thrifty 

Payless, Inc. (2019) 7 Cal.5th 955, 986, fn. 15.) Plaintiffs do not contest that 

this was the proper inquiry or challenge the legal framework Judge Smith 

applied. They essentially argue only that Judge Smith did not properly 

evaluate and interpret the evidence before her. Such an argument must fail, 

as we have no authority to substitute our decision for that of a trial court

with regard to “inferences to be drawn from the facts.” (Sav-On Drug Stores, 

Inc. v. Superior Court, supra, 34 Cal.4th at p. 328.) The issue is whether 

there is substantial evidence supporting Judge Smith’s determination. And 
21

there is, as demonstrated by the testimonial, documentary, and statistical 

evidence discussed above.

10

Were all that not enough, plaintiffs admitted in depositions that their 

claim alleging that the money back guarantee is systematically biased was 

inherently fact based and individualized. For example, plaintiff Cobb 

testified that in determining who was right or wrong in any dispute you 

“would have to dig into the facts of [the] specific transaction.” And Cobb and 

Jancik admitted that whether a seller or buyer is at fault depends on the 

specific facts of the dispute. 

Finally, plaintiffs describe at length eBay’s practice of autoadjudication as claimed evidence of a uniform practice inconsistent with 

eBay’s policy. eBay has never denied that in circumstances where the 

10 Plaintiffs’ fundamental argument regarding some of this evidence is 

that Chhabria is not qualified to testify regarding eBay’s dispute resolution 

process because “she is not an eBay customer service agent.” Judge Smith 

overruled this same objection below, a ruling that cannot be disturbed here, 

where plaintiffs do not even support that point. (See In re Sade C. (1996) 

13 Cal.4th 952, 994.) In any event, Chhabria is qualified to address the 

issue, as she is the director of eBay buyer protection and responsible for the 

very program that oversees the buyer-seller disputes in question.

Plaintiffs argue that any statistical evidence should not be credited 

because Chhabria did not attach the underlying data to her declaration. 

Plaintiffs made the same argument below, an argument Judge Smith 

rejected, finding there was “sufficient foundation” for the statistic in the 

declaration itself. Plaintiffs also characterize the statistic as a “conclusory 

opinion.” But Chhabria reviewed the buyer-seller disputes for the relevant 

period and stated the percentage of disputes that the seller won. That is not 

an “opinion.”

Finally, plaintiffs assert, however quizzically, that Chhabria’s 

statement was made “in furtherance of litigation.” That is true of any 

declaration filed in support of motion briefing—and not a recognized 

evidentiary objection.
22

dispute can be resolved by objective criteria, it may adjudicate buyer-seller 

disputes automatically, with a right of appeal for either party. Regardless, 

suffice to say that Judge Smith considered auto-adjudication arguments and 

found they were immaterial to the class certification determination for an 

even simpler reason: plaintiffs’ evidence suggested millions of other disputes 

were adjudicated by eBay claims agents, meaning that any auto-adjudication 

practice was not uniform across the proposed class. Plaintiffs offer nothing to 

the contrary.

DISPOSITION

The order is affirmed. eBay shall recover its costs on appeal.
23

_________________________

Richman, Acting P. J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Chen, et al., v. eBay (A158417)