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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

ABDUL NEVAREZ, et al.,

Plaintiffs,

v.

FORTY NINERS FOOTBALL COMPANY, 

LLC, et al.,

Defendants.

Case No. 16-CV-07013 

ORDER GRANTING MOTION TO 

COMPEL ARBITRATION

Re: Dkt. No. 60

Plaintiffs Abdul Nevarez (“Mr. Nevarez”), Priscilla Nevarez (“Mrs. Nevarez”), and 

Sebastian DeFrancesco (“DeFrancesco”) (collectively, “Plaintiffs”) sue Defendants Forty Niners 

Football Company, LLC; Forty Niners SC Stadium Company, LLC; Forty Niners Stadium 

Management Company, LLC; the City of Santa Clara; the Santa Clara Stadium Authority 

(together, the “Stadium Defendants”), in addition to Live Nation Entertainment, Inc. (“Live 

Nation”); and Ticketmaster, LLC (“Ticketmaster”) (together with Live Nation Entertainment Inc., 

“Ticketmaster Defendants”). ECF No. 50. Before the Court is Ticketmaster Defendants’ motion 

to compel arbitration. ECF No. 60. Having considered the parties’ submissions, the relevant law, 

and the record in this case, the Court hereby GRANTS Ticketmaster Defendants’ motion to 

compel arbitration.
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I. BACKGROUND

A. Factual Background

Stadium Defendants own, lease, and operate Levi’s Stadium in Santa Clara, California, 

which is the home stadium of the San Francisco Forty Niners professional football team 

(hereinafter, “the Stadium”). ECF No. 50, at ¶¶ 1, 9 (Second Amended Complaint, or “SAC”). 

The Stadium also hosts several other events throughout the year. Id. ¶ 2. Plaintiffs in this case 

allege that, on several occasions, they visited the Stadium for events, but discovered that the 

Stadium was not fully accessible to disabled individuals.

Ticketmaster Defendants provide seating services and parking passes for the Stadium, 

which they make available through the website www.ticketmaster.com (“the Ticketmaster 

Website”). Id. ¶ 10. Plaintiffs allege that Ticketmaster Defendants fail and refuse to provide 

accessible seating and accessible parking to persons with mobility disabilities and that, when 

Ticketmaster Defendants do provide accessible seating and accessible parking, they fail to provide 

accessible seating and accessible parking on equal terms as they provide non-accessible seating 

and parking. Id. ¶¶ 17–18. 

The instant arbitration dispute concerns Plaintiffs’ use of the Ticketmaster Website to 

purchase tickets and parking passes for events at the Stadium, and the arbitration agreement 

contained within the Ticketmaster Website’s Terms of Use (“TOU”).1 The Court first addresses 

the process of purchasing a ticket or parking pass through the Ticketmaster Website, and the 

Ticketmaster Website’s TOU. The Court then addresses Plaintiffs’ use of the Ticketmaster 

Website.

1. Purchasing a Ticket or Parking Pass Through the Ticketmaster Website

To purchase a ticket or parking pass through the Ticketmaster Website, a user must have 

 

1

Plaintiff DeFrancesco does not allege that he ever used the Ticketmaster Website, and thus 

DeFrancesco does not appear to have any claims against Ticketmaster Defendants. Indeed, 

Plaintiffs’ motion in opposition refers only to the Nevarezes as “Plaintiffs,” without any mention 

of DeFrancesco. See Opp. at 9. Accordingly, the term “Plaintiffs” in this order will refer only to 

the Nevarezes, who both used the Ticketmaster Website and allege claims against Ticketmaster 

Defendants.
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an account on the Ticketmaster Website and the user must be signed in to that account. ECF No. 

60-1 (“Han Decl.”), at ¶¶ 3–4. 

In order to create an account on the Ticketmaster Website, a user must complete the 

“Create Account” webpage on the Ticketmaster Website. Id. ¶ 4. The “Create Account” webpage 

asks the user to fill out required information, such as the user’s name and e-mail address. See ECF 

No. 60-4. In order to proceed past the “Create Account” webpage, a user must click the button 

“Accept and Continue.” Id. Below the “Accept and Continue” button, in black bold text against a 

white background, is the sentence: “By continuing past this page, you agree to our terms of use.” 

Id. The words “terms of use” are in blue text, and these words hyperlink to the Ticketmaster 

Website’s TOU. Id. A screenshot of this webpage is displayed below:

Clicking on the “terms of use” hyperlink brings users to the Ticketmaster Website’s TOU 

webpage. The Ticketmaster Website’s TOU state that the TOU “govern [the user’s] use of the 

Ticketmaster sites and applications.” See ECF No. 60-2, at 2. The TOU include information on 
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making purchases on the Ticketmaster Website and registering an account. Id. Further, the TOU 

contain a section with the title, in bold font, “Disputes, Including Mandatory Arbitration and Class 

Action Waiver.” Id. at 6. The paragraph below this bold title contains an arbitration provision, 

which has been in the Ticketmaster Website’s TOU since June 15, 2011. See Han Decl. ¶ 2. This 

arbitration provision provides that “[a]ny dispute or claim relating in any way to your use of the 

Site, or to products or services sold or distributed by us or through us, will be resolved by binding 

arbitration rather than in court.” See ECF No. 60-2, at 6. This paragraph continues as follows:

The arbitration agreement in these [TOU] is governed by the Federal 

Arbitration Act (FAA), including its procedural provisions, in all 

respects. This means that the FAA governs, among other things, the 

interpretation and enforcement of this arbitration agreement and all 

of its provisions, including without limitation, the class action 

waiver discussed below. State arbitration laws do not govern in any 

respect. The arbitration agreement is intended to be broadly 

interpreted, and will survive termination of these Terms. The 

arbitrator, and not any federal, state or local court or agency, shall 

have exclusive authority to the extent permitted by law to resolve all 

disputes arising out of or relating to the interpretation, applicability, 

enforceability or formation of this Agreement, including, but not 

limited to any claim that all or any part of this Agreement is void or 

voidable. There is no judge or jury in arbitration. . . . We each agree 

that the arbitrator may not consolidate more than one person’s 

claims, and may not otherwise preside over any form of a 

representative or class proceeding, and that any dispute resolution 

proceedings will be conducted only on an individual basis and not in 

a class, consolidated or representative action. You agree to waive 

any right to a jury trial or to participate in a class action.” 

Id. This arbitration provision further states that “[p]ayment of all filing, administration and 

arbitrator fees will be governed by JAMS’s rules. We will reimburse those fees for claims totaling 

less than $10,000 unless the arbitrator determines the claims are frivolous, but in no event will we 

pay for attorneys’ fees.” Id. 

If a user already has an account on the Ticketmaster Website, a user must sign in to that 

account before purchasing a ticket or parking pass on the Ticketmaster Website. See Han Decl. ¶ 

5. On the “Sign In to My Account” webpage, a user must fill in their e-mail address and password 

before clicking “Sign In.” See ECF No. 60-5. Below the “Sign In” button, in bold black text 

against a white background, is the sentence “By continuing past this page, you agree to our terms 
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of use.” Id. Again, the words “terms of use” are in blue text, and these words hyperlink to the 

same TOU set forth above, which contains the Ticketmaster Website arbitration provision. Id. A 

screenshot of this webpage is displayed below:

Once a user has registered an account or, if the user is an existing user, signed in to that 

account, a user may purchase a ticket or parking pass on the Ticketmaster Website. See Han Decl. 

¶ 5. Users of the Ticketmaster Website must “affirmatively assent to the [Ticketmaster Website 

TOU] each time they purchase tickets or parking passes” on the Ticketmaster Website. Id. 

Specifically, after the user has selected his or her ticket and entered his or her credit card and 

billing information, the user must click “Submit Order” to complete the order. See ECF No. 60-6. 

Below the “Submit Order” button is the sentence, in black bold text against a white background, 

“By continuing past this page, you agree to our terms of use.” Id. Again, the words “terms of 

use” are in blue font, and these words hyperlink to the TOU set forth above, which contain the 

Ticketmaster Website arbitration provision. Id. Moreover, on the same “Submit Order” page—to 

the left of the “Submit Order” button—is the text “[b]y clicking the ‘Submit Order’ button, you 

are agreeing to the Ticketmaster Purchase Policy and Privacy Policy.” Id. The words “Purchase
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Policy” and “Privacy Policy” are in blue text, and these words hyperlink to the Ticketmaster 

Website Purchase Policy and Privacy Policy, respectively. Id. A screenshot of this webpage is 

displayed below:

The first paragraph of Ticketmaster’s Purchase Policy instructs users to “review our Terms 

of Use which govern your use of our Site.” See ECF No. 60-7, at 2. Again, the words “Terms of 

Use” are in blue text and hyperlink to the Ticketmaster Website’s TOU set forth above, which 

contain the Ticketmaster Website arbitration provision. See id. 

2. Plaintiffs’ Use of the Ticketmaster Website

Plaintiffs used the Ticketmaster Website to purchase an accessible parking pass for a 

November 29, 2015 Supercross event at the Stadium. See SAC ¶ 27. Plaintiffs allege that the 

Ticketmaster Website did not have handicap accessible parking passes available at the standard 

price, so Plaintiffs were forced to purchase a “VIP parking pass” at an extra cost. Id. Nonetheless, 

Plaintiffs allege, when Plaintiffs arrived at the Stadium on the day of the event, “[t]here were 

many empty accessible spaces” available in standard priced lots. Id. 

Plaintiffs also attempted to purchase on the Ticketmaster Website a block of tickets for an 

April 2, 2016 Supercross event at the Stadium. Id. ¶ 34. However, “there were no accessible seats 

available on the [Ticketmaster Website] for the event.” Id. Plaintiffs purchased regular tickets 

through the Ticketmaster Website with the hope of exchanging Mr. Nevarez’s regular seat for a 

handicap accessible seat at the Stadium on the day of the event. Id. ¶ 35. 

B. Procedural History
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On December 7, 2016, the Nevarezes filed suit against the Forty Niners Football 

Company, LLC; Forty Niners SC Stadium Company LLC; the National Football League; the City 

of Santa Clara; the Santa Clara Stadium Authority; and Ticketmaster LLC. ECF No. 1. 

On December 30, 2017, the Nevarezes filed a First Amended Complaint (“FAC”). ECF 

No. 9. On February 3, 2017, Ticketmaster answered the FAC. ECF No. 21. On February 7, 

2017, the Forty Niners Defendants, the National Football League, and the Santa Clara Defendants 

each filed motions to dismiss the FAC. ECF Nos. 28, 30, 32. 

On March 17, 2017, the Nevarezes voluntarily dismissed with prejudice the National 

Football League as a defendant. ECF No. 39.

On April 12, 2017, the parties filed a stipulation to permit the Nevarezes to file a SAC. 

ECF No. 46. The Court granted the parties’ stipulation on April 13, 2017. ECF No. 47. In light 

of the anticipated SAC, the Court denied as moot the pending motions to dismiss the FAC. ECF 

No. 47.

On April 13, 2017, Plaintiffs filed a SAC. ECF No. 50. The SAC added DeFrancesco as a 

Plaintiff, and added Forty Niners Stadium Management Company LLC and Live Nation as 

Defendants. Id. 

Plaintiffs alleged three causes of action in the SAC. First, Plaintiffs alleged that the Forty 

Niners Defendants and the Ticketmaster Defendants violated Title III of the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101. Second, Plaintiffs alleged that the Santa 

Clara Defendants violated Title II of the ADA. Third, Plaintiffs alleged that all Defendants 

violated California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51. Id. 

On April 28, 2017, the Ticketmaster Defendants answered the SAC. ECF No. 56.

On May 1, 2017, the Forty Niners Defendants and the Santa Clara Defendants filed a motion to 

dismiss. ECF No. 58. On May 15, 2017, Plaintiffs filed an opposition. ECF No. 59. On June 5, 

2017, the Forty Niners Defendants and the Santa Clara Defendants filed a reply. ECF No. 65. 

On May 17, 2017, Ticketmaster Defendants filed a motion to compel arbitration. ECF No. 

60 (“Mot.”). On June 16, 2017, Plaintiffs filed an opposition to Ticketmaster Defendants’ motion 
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to compel arbitration. ECF No. 67 (“Opp.”). Also on June 16, 2017, Plaintiffs filed an 

administrative motion to file under seal documents in support of their opposition. ECF No. 68. 

On July 10, 2017, Ticketmaster Defendants filed a reply to Plaintiffs’ opposition. ECF No. 69 

(“Reply). On July 17, 2017, Plaintiffs filed an objection to Ticketmaster Defendants’ Reply. ECF 

No. 70.2

On August 1, 2017, the Court granted in part and denied in part the Stadium Defendants’ 

motion to dismiss the SAC. ECF No. 76.

Also on August 1, 2017, Plaintiffs filed a request for judicial notice in support of their 

opposition to Ticketmaster Defendants’ motion to compel arbitration. ECF No. 67.

II. LEGAL STANDARD

The Federal Arbitration Act (“FAA”) applies to arbitration agreements in any contract 

affecting interstate commerce. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001); 9 

U.S.C. § 2. Under Section 3 of the FAA, “a party may apply to a federal court for a stay of the 

trial of an action ‘upon any issue referable to arbitration under an agreement in writing for such 

arbitration.’” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) (quoting 9 U.S.C. § 3). If 

all claims in litigation are subject to a valid arbitration agreement, the court may dismiss or stay 

the case. See Hopkins & Carley, ALC v. Thomson Elite, 2011 WL 1327359, at *7–8 (N.D. Cal. 

 

2

Plaintiffs object to the fact that Ticketmaster Defendants raised new evidence and arguments for 

the first time in their Reply. See ECF No. 70. Specifically, Plaintiffs contend that Ticketmaster 

Defendants attached the 2015 and 2016 versions of the TOU only in their Reply, but not in their

motion, and thus the Court may not consider these versions of the TOU. The Court disagrees. In 

their motion to compel arbitration, Ticketmaster Defendants stated that the Ticketmaster Website 

has had an arbitration provision since June 15, 2011, and that this arbitration has not changed 

since Plaintiffs used the Ticketmaster Website. See Han Decl. ¶ 2. Ticketmaster Defendants 

attached to their motion to compel arbitration the most recent version of the Ticketmaster Website 

TOU, which had last been updated in 2017. See id.; see ECF No. 60-2. In opposition, Plaintiffs 

argued that Ticketmaster Defendants failed to attach the 2015 and 2016 TOU, which were 

effective when Plaintiffs made their purchases. See ECF No. 69-1. Plaintiffs speculated that the 

2015 and 2016 TOU were meaningfully different from the 2017 TOU. See id. Accordingly, in 

their Reply, Ticketmaster Defendants attached the 2015 and 2016 versions of the TOU. See ECF 

No. 69-1. The 2015 and 2016 TOU show that, as Ticketmaster Defendants argued in their original 

motions, the 2015 and 2016 versions versions contained the same arbitration provision as the 2017 

TOU. Moreover, the 2015 and 2016 TOU as a whole are substantially the same as the 2017 TOU 

as a whole. See id.
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Apr. 6, 2011). 

“For any arbitration agreement within the coverage of the FAA, the court is to make the 

arbitrability determination by applying the federal substantive law of arbitrability, absent clear and 

unmistakable evidence that the parties agreed to apply non-federal arbitrability law.” Brennan v. 

Opus Bank, 796 F.3d 1125, 1129 (9th Cir. 2015) (citations and brackets omitted). In deciding 

whether a dispute is arbitrable, a federal court must answer two questions: (1) whether the parties

agreed to arbitrate; and, if so, (2) whether the scope of that agreement to arbitrate encompasses the 

claims at issue. See id. at 1130; see also Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 

1126, 1130 (9th Cir. 2000). If the party seeking to compel arbitration establishes both factors, the 

court must compel arbitration. Id. “The standard for demonstrating arbitrability is not a high one; 

in fact, a district court has little discretion to deny an arbitration motion, since the [FAA] is 

phrased in mandatory terms.” Republic of Nicar. v. Std. Fruit Co., 937 F.2d 469, 475 (9th Cir. 

1991).

Additionally, in cases where the parties “clearly and unmistakably intend to delegate the 

power to decide arbitrability to an arbitrator,” the Court’s inquiry is “limited . . . [to] whether the 

assertion of arbitrability is ‘wholly groundless.’” Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 

1371 (Fed. Cir. 2006) (applying Ninth Circuit law). Nonetheless, “arbitration is a matter of 

contract and a party cannot be required to submit to arbitration any dispute which he has not 

agreed so to submit.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648 (1986) 

(quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)). 

The FAA creates a body of federal substantive law of arbitrability that requires a healthy 

regard for the federal policy favoring arbitration and preempts state law to the contrary. Volt Info. 

Scis., Inc. v. Bd. Of Trs. Of Leland Stanford Junior Univ., 489 U.S. 467, 475–79 (1989). State law 

is not entirely displaced from the federal arbitration analysis, however. See Ticknor, 265 F.3d at 

936-37. When deciding whether the parties agreed to arbitrate a certain matter, courts generally 

apply ordinary state law principles of contract interpretation. First Options of Chicago, Inc. v. 

Kaplan, 514 U.S. 938, 944 (1995). Parties may also contract to arbitrate according to state rules, 
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so long as those rules do not offend the federal policy favoring arbitration. Volt, 489 U.S. at 478–

79. Thus, in determining whether parties have agreed to arbitrate a dispute, the court applies 

“general state-law principles of contract interpretation, while giving due regard to the federal 

policy in favor of arbitration by resolving ambiguities as to the scope of arbitration in favor of 

arbitration.” Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042, 1044 (9th Cir. 2009) (quoting 

Wagner v. Stratton Oakmont, Inc., 83 F.3d 1046, 1049 (9th Cir. 1996)). “[A]s with any other 

contract, the parties’ intentions control, but those intentions are generously construed as to issues 

of arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 

(1985). If a contract contains an arbitration clause, there is a presumption of arbitrability, AT&T, 

475 U.S. at 650, and “any doubts concerning the scope of arbitrable issues should be resolved in 

favor of arbitration,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 

(1983). 

III. DISCUSSION

According to Ticketmaster Defendants, Plaintiffs’ claims against Ticketmaster Defendants

are subject to arbitration pursuant to the arbitration provision contained within the Ticketmaster 

Website’s TOU. In opposition, Plaintiffs dispute several aspects of the TOU. First, Plaintiffs 

contend that they never agreed to the TOU on the Ticketmaster Website. Second, Plaintiffs 

contend that, even assuming that they did agree to the TOU, the arbitration provision contained 

within the TOU is unconscionable and thus unenforceable. The Court considers these arguments 

in turn.

A. Whether Plaintiffs Agreed to the Ticketmaster Website’s TOU

Plaintiffs first argue that they never agreed to the TOU when they purchased their tickets 

and parking passes through the Ticketmaster Website. “Before a party to a lawsuit can be ordered 

to arbitrate and thus be deprived of a day in court, there should be an express, unequivocal 

agreement to that effect. Only when there is no genuine issue of fact concerning the formation of 

the agreement should the court decide as a matter of law that the parties did or did not enter into 

such an agreement.” Cordas v. Uber Tech., 228 F. Supp. 3d 985, 988 (N.D. Cal. 2017) (quoting 
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Three Valleys Mun. Water Dist. V.E.F. Hutton & Co., 925 F.2d 1136, 1141 (9th Cir. 1991)). 

“Questions of contract formation are questions of state law.” Id. In California, “mutual assent is 

the key to contract formation.” Id. 

Here, the existence of mutual assent between Plaintiffs and Ticketmaster Defendants 

implicates the law of Internet-based contract formation. As the Ninth Circuit has explained, 

“[c]ontracts formed on the Internet come primarily in two flavors: ‘clickwrap’ (or ‘click-through’) 

agreements, in which website users are required to click on an ‘I agree’ box after being presented 

with a list of terms and conditions of use; and ‘browsewrap’ agreements, where a website’s terms 

and conditions of use are generally posted on the website via a hyperlink at the bottom of the 

screen.” Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175–76 (9th Cir. 2014). “Unlike a 

clickwrap agreement, a browsewrap agreement does not require the user to manifest assent to the 

terms and conditions expressly . . . [a] party instead gives his assent simply by using the website.” 

Id. (internal quotation marks omitted). “Indeed, ‘in a pure-form browsewrap agreement, the 

website will contain a notice that—by merely using the services of, obtaining information from, or 

initiating applications within the website—the user is agreeing to and is bound by the site’s terms 

of service.’” Id. (quoting Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 837 (S.D.N.Y. 2012)). 

“Thus, ‘by visiting the website—something that the user has already done—the user agrees to the 

Terms of Use not listed on the site itself but available only by clicking a hyperlink.’” Id. Courts 

have held that the “validity of [a] browsewrap contract depends on whether the user has actual or 

constructive knowledge of a website’s terms and conditions.” Id. (citing cases). 

Plaintiffs contend that the Ticketmaster Website’s TOU, and thus the arbitration provision 

within the TOU, is contained within an unenforceable “browsewrap” agreement. By contrast, 

Ticketmaster Defendants argue that the TOU is a “clickwrap” agreement, and that courts routinely 

enforce “clickwrap” agreements. To resolve this dispute, the Court first reviews the process of 

purchasing a ticket or parking pass on the Ticketmaster Website. The Court then considers 

whether the Ticketmaster Website’s TOU are more properly described as a “browsewrap” or 

“clickwrap” agreement, and whether Plaintiffs assented to the TOU in purchasing their tickets and 
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parking passes on the Ticketmaster Website. 

In purchasing tickets and parking passes from the Ticketmaster Website, Plaintiffs were 

presented with the opportunity to assent to the TOU on at least two occasions. First, in order to 

purchase their tickets and parking passes, Plaintiffs would have had to either register a 

Ticketmaster Website account or sign in to an existing account. See Han Decl. ¶¶ 4–5. If 

Plaintiffs did not have a Ticketmaster Website account at the time that Plaintiffs purchased their 

tickets and parking passes in 2015 and 2016, Plaintiffs would have been required to complete the 

information on the “Create Account” webpage. ECF No. 60-4. After filling in the required 

information, Plaintiffs would have been required to click “Accept and Continue” to create a 

Ticketmaster Website account. Id. Below the “Accept and Continue” button is the statement, in 

black bold text against a white background, “By continuing past this page, you agree to our terms 

of use.” Id. The phrase “terms of use” is in blue text, and the text is a hyperlink to the 

Ticketmaster Website’s TOU, which contain the arbitration provision at issue. Id. 

If Plaintiffs already registered a Ticketmaster Website account at the time that Plaintiffs

purchased their tickets and parking passes in 2015 and 2016, Plaintiffs would have been required 

to sign in to their accounts in order to purchase their tickets and parking passes. See Han Decl. ¶ 

5. In order to sign in to their Ticketmaster Website accounts, Plaintiffs would have been required 

to complete the required fields on the “Sign In” webpage, and click the button “Sign In” to 

proceed past the page. Id. Below the “Sign In” button is the sentence, in black bold text against a 

white background, “By continuing past this page, you agree to our terms of use.” Id. Again, 

“terms of use” is in blue text and is a hyperlink to the Ticketmaster Website’s TOU, which contain

the arbitration provision at issue. Id.

Second, once Plaintiffs either registered an account or signed in to their existing account, 

and once Plaintiffs selected the tickets and parking passes that Plaintiffs wished to purchase, 

Plaintiffs would have been presented with a page to complete their purchase. See ECF No. 60-6. 

On the screen in which Plaintiffs were required to enter their credit card and billing information, 

Plaintiffs would have been required to click the “Submit Order” button to submit and finalize their 
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order. Id. Below the “Submit Order” button is the sentence, in black bold text against a white 

background, “By continuing past this page, you agree to our terms of use.” Id. Again, the 

sentence “terms of use” is in blue font, and is a hyperlink to the Ticketmaster Website’s TOU, 

which contain the arbitration provision at issue. Id. In addition, on the same “Submit Order”

page—and to the left of the “Submit Order” button—is the sentence: “By clicking the ‘Submit 

Order’ button, you are agreeing to the Ticketmaster Purchase Policy and Privacy Policy.” Id. The 

phrase “Purchase Policy” is in blue font and is a hyperlink to the Ticketmaster Website’s Purchase 

Policy. The first paragraph of the Purchase Policy instructs users of the Ticketmaster Website that 

the Ticketmaster Website’s Terms of Use “govern your use of this Site.” See ECF No. 60-7.

Given the process described above for assenting to the Ticketmaster Website’s TOU, the 

Court finds that the Ticketmaster Website’s TOU are neither a “true browsewrap” agreement nor a 

“pure-form clickwrap agreement.” See Fteja, 841 F. Supp. 2d at 836–37. Contrary to Plaintiffs’ 

argument, the Ticketmaster Website’s TOU are not a true browsewrap agreement—in which a 

user purportedly assents to terms of service merely by browsing a website without further action—

because, as discussed above, a user of the Ticketmaster Website must take some affirmative 

actions to agree to the Ticketmaster Website’s TOU. Specifically, prior to making a purchase on 

the Ticketmaster Website, a user of the Ticketmaster Website must click either “Accept and 

Continue” or “Sign In”—depending on whether the individual has an existing Ticketmaster 

Website account—and a user must click “Submit Order” to finalize their purchase. Below the 

buttons “Accept and Continue,” “Sign In,” and “Submit Order” is the sentence “By continuing 

past this page, you agree to our terms of use.” See, e.g., ECF No. 60-6. This sentence is in bold 

black font and is easily visible to a user before the user clicks on any of these buttons. See id. In 

addition, users are also told next to the “Submit Order” button that “By clicking the ‘Submit 

Order’ button, you are agreeing to the Ticketmaster Purchase Policy and Privacy Policy.” Id. The 

phrase “Purchase Policy” is in blue font, and is a hyperlink to the Ticketmaster Website’s 

Purchase Policy, which instructs users that the Ticketmaster Website’s TOU “govern your use of 

this Site.” See ECF No. 60-7. Accordingly, to make a purchase on the Ticketmaster Website, a 
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user must make at least two affirmative clicks after being told that, “By continuing past this page, 

you agree to our terms of use.” See, e.g., ECF No. 60-6.

Although the Court finds that the Ticketmaster Website is not a pure “browsewrap” 

agreement, the Court disagrees with Ticketmaster Defendants that the Ticketmaster Website’s 

TOU is a “pure-form clickwrap agreement.” Fteja, 841 F. Supp. 2d at 836–37. With a “pure-form 

clickwrap agreement,” “users typically click an ‘I agree’ box after being presented with a list of 

terms and conditions of use.” Id. (internal quotation marks omitted). Here, “[w]hile the Terms of 

Use require the user to click on [‘Accept and Continue,’ ‘Sign In,’ or ‘Submit Order’] to assent, 

they do not contain any mechanism that forces the user to actually examine the terms before 

assenting.” Id. Similarly, users of the Ticketmaster Website are not required to click an explicitly 

labeled “I agree” button to assent to the Ticketmaster Website’s TOU. Rather, users must click 

buttons that are labeled for other actions—such as “Sign In”—and these buttons do not themselves 

explicitly reference the Ticketmaster Website’s TOU. Thus, the Ticketmaster Website lacks 

characteristics of a pure clickwrap agreement, in which website users “are presented with the 

proposed license terms and forced to expressly and unambiguously manifest either assent or 

rejection prior to being given access to the product.” Id. 

Accordingly, the Court finds that the Ticketmaster Website’s TOU “are somewhat like a 

browsewrap agreement in that the [TOU] are only visible via a hyperlink” provided below the 

buttons “Accept and Continue,” “Sign In,” and “Submit Order.” Id. at 838 . However, the 

Ticketmaster Website’s TOU are “also somewhat like a clickwrap agreement in that the user must 

do something else” other than simply browse the website “to assent to the hyperlinked terms.” Id. 

Specifically, the user must click “Accept and Continue,” “Sign In,” and “Submit Order” when 

signing in to their accounts and finalizing their orders. Id. (finding Facebook’s terms of use fell 

somewhere in between a pure browsewrap agreement and a pure clickwrap agreement because, 

although users were required to take an affirmative action—clicking “Sign Up”—to agree to the 

terms of use, users could “assent whether or not the user” was presented with the terms of use 

because the terms of use were available only via a hyperlink below the “Sign Up” button).
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In any event, regardless of whether the Ticketmaster Website’s TOU are most 

appropriately labeled as a “browsewrap” or a “clickwrap” agreement, the Court finds that 

Plaintiffs assented to the Ticketmaster Website’s TOU in purchasing their tickets and parking 

passes on the Ticketmaster Website. Indeed, courts have “consistently enforced” arbitration 

clauses contained within terms of use on similarly designed websites. See, e.g., Rodriguez v. 

Experian Serv. Corp., 2015 WL 12656919, at *2 (C.D. Cal. Oct. 5, 2015) (enforcing arbitration 

clause contained within terms of use where “Website contained a hyperlink to the Terms of Use at 

the bottom of every page and included an express disclosure and acknowledgement, which stated 

‘By clicking the button above . . . you agree to our Terms of Use,’” which were hyperlinked); Graf 

v. Match.com, LLC, 2015 WL 4263957, at *4 (C.D. Cal. July 10, 2015) (enforcing arbitration 

clause contained within terms of use where “all users of the Match.com website during the 

relevant time period were required to affirmatively agree to the Terms of Use when they clicked 

on a ‘Continue’ or other similar button on the registration page where it was explained that by 

clicking on that button, the user was affirming that they would be bound by the Terms of Use, 

which were always hyperlinked and available for review”); Crawford v. Beachbody, LLC, 2014 

WL 6606563, at *2–3 (S.D. Cal. Nov. 5, 2014) (enforcing forum selection clause contained within 

terms and conditions of website where, at the final page of placing an order, plaintiff was required 

to click on “Place Order” and language on the same page stated that “by clicking Place Order 

below, you are agreeing” to the website’s terms and conditions, which were hyperlinked). 

As set forth in detail above, the Ticketmaster Website prominently informed Plaintiffs on 

at least two occasions prior to purchasing their ticket or parking pass that, by clicking either 

“Accept and Continue” or “Sign In” to register or sign in to their account, and by clicking “Submit 

Order” to finalize their purchase, Plaintiffs were agreeing to the Ticketmaster Website’s Terms of 

Use, “which were always hyperlinked and available for review.” Graf, 2015 WL 4263957, at *4. 

In addition, Plaintiffs were explicitly told that by clicking “Submit Order” they were agreeing to 

the Ticketmaster Website’s Purchase Policy, which further informed Plaintiffs in the first 

paragraph that their use of the Ticketmaster Website was governed by the Ticketmaster Website’s 
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TOU. Indeed, because of the Ticketmaster Website’s design and the process discussed above for 

assenting to the TOU, another district court has enforced the exact same arbitration clause

contained within the Ticketmaster Website’s TOU that is at issue here. See Goza v. Multi-Purpose

Civic Ctr. Facilities Bd. For Pulaski Cty., 2014 WL 3672128, at *3 (W.D. Ark. July 23, 2014) 

(finding there was mutual assent to the Ticketmaster Website’s Terms of Use because a user must 

assent to the Terms of Use in registering an account and purchasing tickets on the Ticketmaster 

Website). 

Thus, the Court concludes that Plaintiffs accepted the TOU when Plaintiffs made their 

ticket and parking pass purchases on the Ticketmaster Website in 2015 and 2016, and thus 

Plaintiffs assented to the arbitration provision contained within the Ticketmaster Website’s TOU. 

See, e.g., Graf, 2015 WL 4263957, at *4 (finding plaintiffs consented to the terms of use on 

website because Plaintiffs “were required to affirmatively agree to the Terms of Use when they 

clicked on a ‘Continue’ or other similar button”); Rodriguez, 2015 WL 12656919, at *2 (finding 

Plaintiffs consented to terms of use where the defendant’s website “contained a hyperlink to the 

Terms of Use at the bottom of every page and included an express disclosure and 

acknowledgement, which stated ‘By clicking the button above . . . you agree to our Terms of 

Use’”).

However, the Court must deal with a final issue. On August 1, 2017—nearly two months 

after Plaintiffs filed their opposition on June 16, 2017, and nearly a full month after Ticketmaster 

Defendants filed their reply in support of their motion to compel arbitration—Plaintiffs filed a 

“Request for Judicial Notice” in support of their opposition. See ECF No. 75. Plaintiffs’ August 

1, 2017 Request for Judicial Notice requested that the Court take judicial notice of screenshots of 

the Ticketmaster Website’s account registration and sign-in pages, which Plaintiffs accessed on 

July 31, 2017. Id. Unlike the screenshots of the account registration and sign-in pages attached to 

Ticketmaster Defendants’ motion to compel arbitration,3the July 31, 2017 screenshots of the 

 

3

The screenshots of the account registration and sign-in pages attached to Ticketmaster 

Defendants’ motion to compel arbitration are not dated. See ECF No. 60-2 & 60-1. However, the 
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account registration and sign-in pages attached to Plaintiffs’ August 1, 2017 Request for Judicial 

Notice do “not contain any hyperlink to Defendants’ Terms of Use.” Id. at 3. Rather, below the 

buttons “Accept and Continue” and “Sign In,” there is no text whatsoever. See id. at 6–8. 

For several reasons, Plaintiffs’ August 1, 2017 Request for Judicial Notice does not change 

the Court’s conclusion that Plaintiffs assented to the Ticketmaster Website’s TOU in purchasing 

their tickets and parking passes on the Ticketmaster Website. First, Plaintiffs’ August 1, 2017 

request for judicial notice is untimely. Ticketmaster Defendants’ motion to compel arbitration 

argued that Plaintiffs assented to the TOU in registering an account and clicking “Accept and 

Continue” and “Sign In,” and Ticketmaster Defendants included with their motion screenshots of 

these webpages illustrating that these pages contained the language “[b]y continuing past this 

page, you agree to our terms of use.” See ECF No. 60-5. Plaintiffs did not argue in their June 16, 

2017 opposition that the Ticketmaster Website’s account registration and sign in pages did not 

contain the language “[b]y continuing past this page, you agree to our terms of use,” as Plaintiffs’ 

August 1, 2017 Request for Judicial Notice now implies. See ECF No. 67. Plaintiffs do not 

provide any explanation for why Plaintiffs did not raise this issue in their June 16, 2017 

opposition, and instead have raised it nearly a month after Ticketmaster Defendants filed their 

Reply on July 10, 2017. See ECF No. 75. Accordingly, because Plaintiffs failed to raise this issue 

in their opposition, and because Plaintiffs have not provided any reasons for why Plaintiffs waited 

until August 1, 2017 to raise the issue, the Court finds the Plaintiffs’ August 1, 2017 Request for 

Judicial Notice untimely.

Second, Plaintiffs’ August 1, 2017 Request for Judicial Notice states only that the 

registration and sign in pages accessed on July 31, 2017 did not contain the language “[b]y 

 

declaration to which the screenshots are attached was executed on May 16, 2017. See Han Decl. 

The declaration states that “[s]ince 2003, users must click an[] ‘Accept and Continue’ button as 

part[] of the website’s account setup procedure,” and that “[i]f a user already has an account, then 

he or she must log in.” Han Decl. ¶ 4–5 (emphasis added). “Directly below” these buttons, the 

declaration states, “the customer is informed that by using the website, the customer agrees to be 

bound by the Terms of Use.” Id. Accordingly, although Ticketmaster Defendants’ screenshots 

are not dated, the accompanying declaration was issued on May 16, 2017 and states that the 

Ticketmaster Website has contained this language since 2003. Id.
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continuing past this page, you agree to our terms of use.” See ECF No. 75, at 3. Plaintiffs do not 

state in their August 1, 2017 Request for Judicial Notice—and Plaintiffs did not argue in their June 

16, 2017 opposition—that the Ticketmaster Website’s account registration and sign in pages did 

not contain a hyperlink to the TOU in 2015 and 2016, which were the years that Plaintiffs bought 

the tickets and parking passes at issue. See ECF No. 67. Thus, the website screenshot taken on 

July 31, 2017 is irrelevant to the instant motion, which relates to Plaintiffs’ purchases on the 

Ticketmaster websites for events in 2015 and 2016. See SAC ¶¶ 34, 47. Indeed, the declaration 

issued in support of Ticketmaster Defendants’ motion to compel arbitration states that “[s]ince 

2003, users must click an[] ‘Accept and Continue’ button as part[] of the website’s account setup 

procedure,” and that “[i]f a user already has an account, then he or she must log in.” Han Decl. ¶ 

4–5. “Directly below” these buttons, the declaration states, “the customer is informed that by 

using the website, the customer agrees to be bound by the Terms of Use.” Han Decl. ¶ 4–5. 

Accordingly, based on the evidence before the Court, Plaintiffs were presented with the 

Ticketmaster Websites Terms of Use at the time that they either registered for or signed into their 

accounts in 2015 and 2016, the years that Plaintiffs purchased the tickets and parking passes at 

issue. See SAC ¶¶ 24, 27, 34, 35.

Finally, even assuming that the Ticketmaster Website’s account registration and sign in 

pages did not contain the statement “[b]y continuing past this page, you agree to our terms of use”

at the time that Plaintiffs purchased their tickets and parking passes, the Court would still find that 

Plaintiffs assented to the Ticketmaster Website’s TOU in purchasing their tickets and parking 

passes. Significantly, Plaintiffs’ August 1, 2017 Request for Judicial Notice contains no argument 

or evidence regarding the Ticketmaster Website’s “Submit Order” page for purchasing tickets and 

parking passes. See ECF No. 67. As discussed above, the Ticketmaster Website’s “Submit 

Order” page informs users that “[b]y continuing past this page, you agree to our terms of use,” 

which are hyperlinked. See ECF No. 60-6. Further, the “Submit Order” page also contains

language to the left of the “Submit Order” button that instructs that, “By clicking the ‘Submit 

Order’ button, you are agreeing to the Ticketmaster Purchase Policy and Privacy Policy.” Id. The 
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phrase “Purchase Policy” is in blue font, and is a hyperlink to the Ticketmaster Website’s 

Purchase Policy, which instructs users that the Ticketmaster Website’s TOU “govern your use of 

this Site.” See ECF No. 60-7. Thus, even assuming that the Ticketmaster Website’s account 

registration and sign in pages did not require Plaintiffs to manifest assent to the Ticketmaster 

Website’s TOU, Plaintiffs would still have been required to manifest assent to the Terms of Use in 

clicking “Submit Order” to purchase their tickets and parking passes. Id. Accordingly, even if the 

Court were to consider Plaintiffs’ August 1, 2017 request for judicial notice, the Court would still 

find that Plaintiffs manifested assent to the Ticketmaster Website’s TOU in purchasing their 

tickets and parking passes from the Ticketmaster Website in 2015 and 2016.

B. Arbitrability 

Having concluded that Plaintiffs assented to the Ticketmaster Website’s TOU, and thus 

assented to the arbitration provision contained within the Ticketmaster Website’s TOU, the 

remaining question is whether that arbitration provision governs the instant dispute between the 

parties. Here, Ticketmaster Defendants argue that not only is the instant lawsuit subject to 

arbitration, but indeed the parties have clearly and unmistakably delegated the threshold question 

of arbitrability to the arbitrator. For the reasons discussed below, the Court agrees. 

“Under federal law, ‘[t]he question whether parties have submitted a particular dispute to 

arbitration . . . is an issue for judicial determination unless the parties clearly and unmistakably 

provide otherwise.’” Loewen v. Lyft, 129 F. Supp. 3d 945, 954 (N.D. Cal. 2015) (quoting 

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)). “If the parties clearly and 

unmistakably assign the arbitrability question to the arbitrator, ‘the court should perform a second, 

more limited inquiry to determine whether the assertion of arbitrability is ‘wholly groundless.’” 

Id. “An arbitration provision that explicitly refers arbitrability questions to an arbitrator is 

evidence that the parties clearly and unmistakably have referred the arbitrability question to the 

arbitrator.” Id. 

The parties do not dispute that the arbitration clause contained within the Ticketmaster 

Website’s TOU clearly and unmistakably delegates the question of arbitrability to the arbitrator. 
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The arbitration provision explicitly provides: 

The arbitrator and not any federal, state or local court or agency 

shall have exclusive authority to the extent permitted by law to 

resolve all disputes arising out of or relating to the interpretation, 

applicability, enforceability or formation for this Agreement, 

including but not limited to any claim that all or any part of this 

Agreement is void or voidable. 

See ECF No. 60-2, at 6. 

Plaintiffs’ only remaining defense to arbitration is that this delegation provision is 

unconscionable. Significantly, because the parties agree that the arbitration clause clearly and 

unmistakably delegates arbitrability to the arbitrator, the Court’s unconscionability inquiry is 

limited to the delegation provision specifically, rather than the arbitration clause or the 

Ticketmaster Website’s TOU as a whole. See Brennan v. Opus Bank, 796 F.3d 1125, 1132 (9th

Cir. 2015) (“Because a court must enforce an agreement that, as here, clearly and unmistakably 

delegates arbitrability questions to the arbitrator, the only remaining question is whether the 

particular agreement to delegate arbitrability—the Delegation Provision—is itself 

unconscionable”). 

“[T]he core concern of unconscionability doctrine is the absence of meaningful choice on 

the part of one of the parties together with contract terms which are unreasonably favorable to the 

other party.” Sonic-Calabasas A, Inc. v. Moreno, 57 Cal. 4th 1109, 1145 (2013) (quotations and 

citations omitted). “[T]he party opposing arbitration bears the burden of proving any defense, 

such as unconscionability.” Pinnacle Museum Tower Ass’n Pinnacle Market Dev. (US), LLC, 55 

Cal. 4th 223, 236 (2012). For unconscionability, California requires a showing of both procedural 

and substantive unconscionability, balanced on a sliding scale. See Patterson, 14 Cal. App. 4th at 

1664 (noting analytical approaches to unconscionability). The Court addresses both procedural 

and substantive unconscionability in turn below.

1. Procedural Unconscionability

The Court first considers whether the delegation provision is procedurally unconscionable. 

The procedural component of unconscionability “focuses on the factors of oppression and 
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surprise.” Patterson v. ITT Consumer Fin. Corp., 14 Cal. App. 4th 1659, 1664 (1993) (citations 

omitted). “Oppression results where there is no real negotiation of contract terms because of 

unequal bargaining power.” Id. “‘Surprise’ involves the extent to which the supposedly agreedupon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to 

enforce the disputed terms.” Id. According to Plaintiffs, the delegation provision at issue here is 

procedurally unconscionable because the delegation provision is contained within a contract of 

adhesion, and because Plaintiffs were not given notice of the provision at the time they purchased 

their tickets and parking passes on the Ticketmaster Website.

“Unconscionability analysis begins with an inquiry into whether the contract is one of 

adhesion.” Armendariz, 24 Cal. 4th at 113. An adhesive contract “signifies a standardized 

contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the 

subscribing party only the opportunity to adhere to the contract or reject it.” Id. (citation omitted). 

Here, the Court agrees with Plaintiffs that the delegation provision is contained within a contract 

of adhesion because Ticketmaster Defendants drafted the TOU, and users of the Ticketmaster 

Website were given “only the opportunity to adhere to [the TOU] or reject” them. See id. 

Nonetheless, although the Court agrees with Plaintiffs that the delegation provision is contained 

within a contract of adhesion, the Court concludes that this creates only a “low degree of 

procedural unconscionability” in this case. Loewen, 129 F. Supp. 3d at 944 (citing Sanchez v. 

Valencia Holding Co., LLC, 61 Cal. 4th 899, 915 (2015)). Other than the adhesive nature of the 

contract, there are no other indicia of oppression or surprise with regards to the delegation 

provision. As set forth above, Plaintiffs were prominently notified that their use of the 

Ticketmaster Website was governed by the Ticketmaster Website’s TOU, and Plaintiffs were 

provided with a hyperlink to the Ticketmaster Website’s TOU when Plaintiffs registered for the 

Ticketmaster Website, signed in to their account, and submitted their orders. The arbitration

provision within the Ticketmaster Website’s TOU is set forth in its own paragraph of the TOU, 

and it is underneath a bold heading entitled “Disputes, Including Mandatory Arbitration and Class 

Action Waiver.” ECF No. 60-2, at 6. The paragraph delegating arbitrability to the arbitrator is 
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contained within this arbitration provision in clear language. See id. District courts have 

consistently rejected procedural unconscionability arguments in similar circumstances. See, e.g.,

Loewen, 129 F. Supp. 3d at 957 (rejecting argument that delegation provision was highly 

procedurally unconscionable, even though the provision was contained in a lengthy terms of 

service available to users via hyperlink, because users of the website had the opportunity to read 

the terms of service prior to agreeing and because the arbitration provision contained within the 

terms of service was “under a bolded, large font heading relating to arbitration”); Graf, 2015 WL 

4263957, at *5 (finding arbitration provision was “at most minimally procedurally 

unconscionable,” and ultimately enforcing the arbitration provision, where the arbitration 

provision was contained within a contract of adhesion but was nonetheless “presented as its own 

section of the Terms of Service” with bold font “to draw the reader’s attention to it”). 

Furthermore, although users of the Ticketmaster Website must agree to the Ticketmaster 

Website’s TOU to purchase tickets and parking passes on the Ticketmaster Website, the degree of 

procedural unconscionability in this case is reduced because Plaintiffs were not required to use the 

Ticketmaster Website to purchase tickets for events at the Stadium. Indeed, Plaintiffs’ own SAC 

shows that Plaintiffs made purchases from the Stadium Box Office itself on some occasions, rather 

than from the Ticketmaster Website. See, e.g. SAC ¶ 24. Thus, because Plaintiffs were “free to 

bypass Ticketmaster and purchase tickets directly from the box office,” there is a low degree of 

procedural unconscionability in this case even though the delegation provision was presented to 

Plaintiffs in a contract of adhesion. See Goza, 2014 WL 3672128, at *5 (finding that the same 

arbitration provision at issue here had a low degree of procedural unconscionability because 

individuals are not required to use the Ticketmaster Website to purchase tickets for events).

Thus, although the Court finds that the delegation provision contains a degree of 

procedural unconscionability because it is contained within a contract of adhesion, the Court 

concludes that this creates only a “low degree of procedural unconscionability” in this case.

Loewen, 129 F. Supp. 3d at 944 (citing Sanchez v. Valencia Holding Co., LLC, 61 Cal. 4th 899, 

915 (2015)). Accordingly, because the degree of procedural unconscionability is low, the Court 
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will enforce the delegation provision “unless the degree of substantive unconscionability is high.” 

Id. (internal quotation marks omitted). The Court turns to address substantive unconscionability.

2. Substantive Unconscionability

As set forth above, under California law, a delegation provision must be both procedurally 

and substantively unconscionable to be deemed unenforceable. Substantive unconscionability 

arises when a provision is so “overly harsh or one-sided” that it falls outside the “reasonable 

expectations” of the non-drafting party. Gutierrez, 114 Cal. App. 4th at 88 (quoting Armendariz, 

24 Cal. 4th at 113–14). It is not enough that terms are slightly one-sided or confer more benefits 

on a particular party; a substantively unconscionable term must be so unreasonable and one-sided 

as to “shock the conscience.” Am. Software, Inc. v. Ali, 46 Cal. App. 4th 1386, 1391 (1996). 

Plaintiffs’ primary argument in support of finding the delegation provision substantively 

unconscionable is that, if Plaintiffs were required to arbitrate even the threshold question of 

arbitrability, the process of arbitration would subject Plaintiffs to “substantial costs” that they 

cannot afford. See Opp. at 17–18. According to Plaintiffs, in order to participate in arbitration, 

Plaintiffs will have to pay a non-refundable filing fee of $2,000 and professional fees of a 

mediator, which will range from $6,000 to $9,000 per day. Id. Plaintiffs present affidavits 

indicating that their income is such that they cannot afford these high costs because their 

disposable income is less than $100 a month. See ECF No. 68-13.

For several reasons, however, Plaintiffs’ argument regarding arbitration expenses is not 

persuasive. First, to the extent that Plaintiffs are actually indigent, “JAMS waives all arbitration 

fees for indigent consumers in California.” See Reply at 10–11. Specifically, JAMS provides that 

in California, consumers “with a gross monthly income of less than 300% of the federal poverty 

guidelines are entitled to a waiver of arbitration fees.” See ECF No. 69-6, at 2.

Second, even if Plaintiffs are not indigent, the arbitration provision contained within the 

Ticketmaster Website’s TOU provides that arbitration will be conducted by JAMS under JAMS’s 

rules, including under JAMS’s “Consumer Arbitration Standards of Minimum Fairness” where 

applicable. ECF No. 60-2, at 6. JAMS’s Consumer Arbitration Standards of Minimum Fairness
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provide that “the only fee required to be paid by the consumer is $250, which is approximately 

equivalent to current Court filing fees. All other costs must be borne by the company, including 

any remaining JAMS Case Management Fee and all professional fees for the arbitrator’s services.” 

See ECF No. 67-1. Thus, under JAMS, Plaintiffs’ total arbitration expenses will very likely not 

exceed $250. Id. Indeed, in Goza, in which the district court addressed the exact same arbitration 

clause at issue here, the district court recognized that the consumer would be required to pay only

$250 to arbitrate his or her dispute against Ticketmaster, which was “comparable to fees required 

to file a lawsuit.” Goza, 2014 WL 3672128, at *5. 

Moreover, although Plaintiffs cite several cases in which courts have held arbitration 

provisions substantively unconscionable because the plaintiff would have been required to pay 

excessive arbitration costs, those cases are readily distinguishable. In the cases relied upon by 

Plaintiffs, the arbitration provision at issue explicitly “required [the plaintiff] to pay half of the 

arbitral fees.” See, e.g., Saravia v. Dynamex, Inc., 310 F.R.D. 412, 421 (N.D. Cal. 2015); 

Chavarria v. Ralphs Grocery Co., 733 F.3d 916, 925 (9th Cir. 2013) (finding substantive 

unconscionability where arbitration policy “require[d] that an employee pay half of [the fees for a 

qualified arbitrator]—$3,500 to $7,000—for each day of the arbitration,” in addition to other 

offending terms). Here, as discussed above, the Ticketmaster Website’s arbitration provision 

requires Plaintiffs to pay the equivalent of Court filing fees and requires Defendants to bear all 

other costs including the arbitrator’s professional fees. See ECF No. 60-2, at 6. Thus, the cases 

relied upon by Plaintiffs are inapposite.

Plaintiffs speculate that “it is likely that JAMS would decline to arbitrate this matter,” and 

thus Plaintiffs would face higher arbitration costs under different arbitration rules, because the 

Ticketmaster Website arbitration clause contains “offending arbitration terms,” such as limits on

Plaintiffs’ statutory remedies. See Opp. at 19. However, contrary to Plaintiffs’ argument, the 

arbitration clause does not limit Plaintiffs’ right to obtain remedies, but rather provides that “an 

arbitrator can award on an individual basis the same damages and relief as a court (including 

injunctive and declaratory relief or statutory damages).” ECF No. 60-2, at 6. Ticketmaster 
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Defendants themselves recognize in their opposition that the arbitration provision does not impose 

any limitations on Plaintiffs’ rights to obtain remedies. See id. at 12–13. Thus, Plaintiffs’ 

argument that JAMS will decline to arbitrate this matter—and thus that Plaintiffs will be required 

to bear excessive arbitration fees—is wholly speculative, and does not provide a basis for finding 

the arbitration agreement substantively unconscionable. See, e.g., Pope v. Sonatype, 2015 WL 

2174033, at *4 (N.D. Cal. May 8, 2015) (rejecting argument that plaintiff would be responsible for 

unreasonable costs in arbitration where “the most logical interpretation of the Arbitration 

Agreement” was that JAMS’s minimum standards applied and thus plaintiff would be required to 

pay only an initial case management fee, but not any further fees); see also Kilgore v. KeyBank, 

Nat. Ass’n, 718 F.3d 1052, 1058–59 (9th Cir. 2013) (rejecting argument that arbitration provision 

was procedurally unconscionable merely because there was a risk that “students may not be able 

to afford arbitration fees”); Goza, 2014 WL 3672128, at *5 (rejecting Plaintiffs’ substantive 

unconscionability challenge to same arbitration clause in Ticketmaster Website’s TOU because 

Plaintiffs would be required to pay only a $250 fee, which “is comparable to fees required to file a 

lawsuit”).

Moreover, even assuming JAMS would decline to arbitrate this matter, the Ticketmaster 

Website’s arbitration provision states that Ticketmaster will reimburse administration and 

arbitrator fees “for claims totaling less than $10,000 unless the arbitrator determines the claims are 

frivolous, but in no event will we pay for attorney’s fees.” ECF No. 60-2. As Ticketmaster 

Defendants admit, this clause only means that “although Defendants will automatically pay for 

arbitration fees for small monetary claims regardless of who the prevailing party is,” Ticketmaster 

Defendants “will not agree to do so for attorney’s fees.” See Reply at 12. “Nothing in this 

language can be construed as a waiver of Plaintiffs’ right to recover attorney’s fees pursuant to a 

prevailing party provision in a statute, such as the ADA or the Unruh Act.” Id. 

Here, Plaintiffs individual claims likely total less than $10,000. Plaintiffs assert against the 

Ticketmaster Defendants one count under Title III of the ADA and one count under the Unruh 

Act. “Monetary damages are not available in private suits under Title III of the ADA.” Molski v. 
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M.J. Cable, Inc., 481 F. 3d 724, 730 (9th Cir. 2007). The Unruh Act permits monetary recovery in 

the form of “up to a maximum of three times the amount of actual damages but in no case less 

than four thousand dollars.” Cal. Civ. Code § 52(a). “The litigant need not prove she suffered 

actual damages to recover the independent statutory damages of $4,000.” Molski, 481 F.3d at 730. 

As far as actual damages, Plaintiffs allege that they purchased a parking pass from the 

Ticketmaster Website in 2015, and that they purchased a set of tickets on the Ticketmaster 

Website in 2016. See, e.g., SAC ¶¶ 27, 34. Plaintiffs allege that Ticketmaster Defendants did not 

provide a sufficient number of handicap accessible tickets and parking passes, which resulted in 

Plaintiffs having to spend money on a “VIP” parking pass, and having to purchase Mr. Nevarez a 

regular seat to exchange for a handicap accessible seat on the day of the event. See id. However, 

as Ticketmaster Defendants’ records show, Plaintiffs’ total purchases on the Ticketmaster Website 

for events at the Stadium in 2015 and 2016 do not exceed $400. See ECF No. 60-8 (setting forth 

Plaintiffs’ orders on the Ticketmaster Website). Accordingly, assuming either that Plaintiffs 

receive statutory damages of $4,000 for each of Ticketmaster Defendants’ two alleged Unruh Act

violations, or that Plaintiffs receive the maximum of three times their actual damages under the 

Unruh Act, Plaintiffs’ individual claims against Ticketmaster Defendants would still likely not 

total $10,000. Thus, other than Plaintiffs’ speculation, there is no basis in the SAC to believe that 

Plaintiffs’ damages will total over $10,000 based on their visits to the Stadium. See generally 

SAC.

Thus, although Plaintiffs’ contend that arbitration will impose “substantial costs” on 

Plaintiffs that they cannot afford, Plaintiffs have not established substantive unconscionability. To 

the extent Plaintiffs are indigent, Plaintiffs will not pay any arbitration fees. Moreover, the

Ticketmaster Website’s arbitration provision requires Plaintiffs to pay the equivalent of Court 

filing fees and requires Defendants to bear all other costs including the arbitrator’s professional 

fees. See ECF No. 60-2, at 6; see also Goza, 2014 WL 3672128, at *5 (finding, under same 

arbitration provision at issue here, that Plaintiffs would face only $250 in arbitration fees). 

Moreover, even if JAMS Consumer Arbitration Standards of Minimum Fairness do not apply, 
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Plaintiffs will likely not pay for the costs of arbitration because their claims against Ticketmaster 

Defendants are likely less than $10,000, and the arbitration provision provides that Ticketmaster 

Defendants “will reimburse [arbitration] fees for claims totaling less than $10,000 unless the 

arbitrator determines the claims are frivolous.” See ECF No. 60-2, at 6. Accordingly, Plaintiffs 

have not established that the delegation provision in the arbitration provision is substantively 

unconscionable. 

Therefore, while the delegation provision contains a low degree of procedural 

unconscionability, Plaintiffs have not met their burden to demonstrate that the delegation 

provision is both procedurally and substantively unconscionable, as required by California law. 

Thus, the Court enforces the delegation provision. Accordingly, the Court need not—and 

cannot—reach Plaintiffs’ remaining arguments regarding the unconscionability of the arbitration 

clause as a whole, which the parties have clearly and unmistakably delegated to the arbitrator in 

the first instance. See ECF No. 60-2 (“The arbitrator and not any federal, state or local court or 

agency shall have exclusive authority to the extent permitted by law to resolve all disputes arising 

out of or relating to the interpretation, applicability, enforceability or formation for this 

Agreement, including but not limited to any claim that all or any part of this Agreement is void or 

voidable.”). 

IV. CONCLUSION

For the foregoing reasons, Ticketmaster Defendants’ motion to compel arbitration is 

GRANTED. Plaintiffs’ claims against Ticketmaster Defendants are DISMISSED without 

prejudice. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (stating that, 

when arbitration is mandatory, court shave discretion to stay the case under 9 U.S.C. § 3 or 

dismiss the litigation entirely); Tompkins v. 23andMe, Inc., 2014 WL 2903752, at *18 (N.D. Cal. 

June 25, 2014) (dismissing claims without prejudice where arbitration was mandatory and the 

parties did not identify any concerns for why a stay was more appropriate over dismissal). 

IT IS SO ORDERED.
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Dated: August 15, 2017

______________________________________

LUCY H. KOH

United States District Judge