SUPERIOR COURTOF CALIFORNIA,
`COUNTY OF ORANGE
`CIVIL COMPLEX CENTER
`
`MINUTE ORDER
`
`TIME: 09:10:00 AM
`DATE: 11/12/2024
`JUDICIAL OFFICER PRESIDING: Lon F. Hurwitz
`CLERK: S. Turner
`REPORTER/ERM: None
`BAILIFF/COURT ATTENDANT: None
`
`DEPT: CX103
`
`CASE NO: 30-2023-01313431-CU-MC-CXC CASE INIT.DATE: 03/13/2023
`CASE TITLE: Epson America, Inc. vs. Adams
`CASE CATEGORY:Civil - Unlimited
`CASE TYPE: Misc Complaints - Other
`
`
`EVENT ID/DOCUMENT ID: 74425046
`
`EVENT TYPE: Chambers Work
`
`
`
`APPEARANCES
`
`
`There are no appearancesbyany party.
`
`The Court, having reviewed and considered the Trial Briefs, Supplemental Briefs, Stipulations, Evidence,
`and Supplemental Evidence submitted by the Parties
`in
`this Phase One of
`the Trial
`in
`the
`above-referenced matter, now issues the attached Proposed Statement of Decision pursuant
`to
`California Code of Civil Procedure Section 632 and California Rules of Court 3.1590(c)(1)(4) and 3.1590
`(g). Plaintiff and Defendants shall have 15 days from the date of service to file any objections or
`supplemental proposals to this Proposed Statement of Decision.
`
`4 NOV 1 2 2024
`
`Date
`
`on F. Hurw
`
`DATE: 11/12/2024
`DEPT: CX103
`
`MINUTE ORDER
`
`Page 1
`Calendar No.
`
`
`COUNTY OF ORANGE
`CIVIL COMPLEX CENTER
`
`MINUTE ORDER
`
`TIME: 09:10:00 AM
`DATE: 11/12/2024
`JUDICIAL OFFICER PRESIDING: Lon F. Hurwitz
`CLERK: S. Turner
`REPORTER/ERM: None
`BAILIFF/COURT ATTENDANT: None
`
`DEPT: CX103
`
`CASE NO: 30-2023-01313431-CU-MC-CXC CASE INIT.DATE: 03/13/2023
`CASE TITLE: Epson America, Inc. vs. Adams
`CASE CATEGORY:Civil - Unlimited
`CASE TYPE: Misc Complaints - Other
`
`
`EVENT ID/DOCUMENT ID: 74425046
`
`EVENT TYPE: Chambers Work
`
`
`
`APPEARANCES
`
`
`There are no appearancesbyany party.
`
`The Court, having reviewed and considered the Trial Briefs, Supplemental Briefs, Stipulations, Evidence,
`and Supplemental Evidence submitted by the Parties
`in
`this Phase One of
`the Trial
`in
`the
`above-referenced matter, now issues the attached Proposed Statement of Decision pursuant
`to
`California Code of Civil Procedure Section 632 and California Rules of Court 3.1590(c)(1)(4) and 3.1590
`(g). Plaintiff and Defendants shall have 15 days from the date of service to file any objections or
`supplemental proposals to this Proposed Statement of Decision.
`
`4 NOV 1 2 2024
`
`Date
`
`on F. Hurw
`
`DATE: 11/12/2024
`DEPT: CX103
`
`MINUTE ORDER
`
`Page 1
`Calendar No.
`
`
`
`PROPOSED STATEMENT OF DECISION
`
`EPSON AMERICA,INC. v. MATT
`ADAMS,ET. AL., OCSC CASE NO. 2023-
`01313431
`
`|
`Background
`I.
`This Action (hereinafter “Adams Case”),
`along with its related case, Epson v.
`Arnoff OCSC Case No. 2023-10315890,
`(hereinafter “Arnoff Case”), was filed on
`3/13/23. The history of these two cases,
`and the Court’s analysis regarding the
`subject arbitration agreements giving
`rise to both cases, is set forth in the
`Court’s “Analyses and Order On The
`Bifurcated Trial In: Eoson America,Inc. v.
`Matt Adams,et. al., (citation); Epson
`America, Inc. v. Graeson Arnoff, et. al.,
`
`
`
`(citation)” issued by this Court on
`7/10/24 via the Court’s Minute Order of
`that date [ROA 226].
`
`The Court repeats and fully incorporates
`said Analyses and Order On Bifurcated
`Trial into this Statement of Decision as
`thoughfully set forth herein. For ease of
`reference, said Analyses and Order of
`7/10/24 is attached hereto as Exhibit “A”.
`
`The Parties submittedalist of
`Stipulations of Limitations on
`Evidence/Argumentthat included, inter
`alia, Stipulation No. 1 prohibiting
`discussion as to which version of the
`Epson End User License Agreement
`(“EULA”) would apply to any of the
`
`
`
`Defendants’ claims. This Stipulation was
`filed with the Court on 1/23/24 [ROA
`138]. The Parties also filed a Joint List of
`Controverted Issues [ROA 143] which
`listed two primary agreed upon issues
`and a third issue disputed by the
`Defendants:
`
`1. What is required under the Initial
`Dispute Resolution provisions in
`Epson’s End User License
`Agreements?
`2. Was this requirementsatisfied
`before Defendantsfiled arbitration
`claims against Epson in JAMS?
`
`The third issue listed by Plaintiff Epson,
`and disputed by Defendants, was:
`
`
`
`3.
`
`Is compliance with the 60 day
`Notice provision in Section 14.3 or
`22.2 of the EULA(s) delegated to the
`arbitrator?
`
`As explained in Exhibit A attached
`hereto, the decision by the U.S. Supreme
`Court on 5/23/24 in Coinbasev. Suski,
`requires that where 2 different EULA’s
`provide two different methodologies as
`to how a dispute regarding EULA terms is
`to be determined,i.e.: one EULA
`requiring the arbitrator to make the
`determination, and one EULAsaying that
`the Court shall make the determination,
`the Court must make the determination
`as to which EULA governs.
`
`
`
`As such, while the Parties’ Stipulation of
`Limitations No. 1 indicated that the
`question of which version of the EULA
`would apply was not to be determinedin
`this Phase 1 of the Trial, the merger of
`Controverted Issues 1 and 3, and the
`decision in Coinbase v. Suski, mandated
`that this Court make such determination
`
`in order to decide who would determine
`
`the Controverted Issues.
`
`Therefore, as part of the Court’s 7/10/24
`Analyses and Order, the Court issued an
`Order For Further Information (page 44
`of Exhibit A) to Defendants; and
`removed this action from the Submitted
`List pending receipt of said information.
`
`
`
`Defendants timely complied with this
`Order on 9/06/24.
`
`Thereafter, after review of Defendants’
`production of 9/06/24, the Court issued
`its Order to Plaintiff to provide the Court
`with a Declaration Under Penalty of
`Perjury from Plaintiff’s Person Most
`Knowledgeable attesting to the effective
`date of Trial Exhibit No. 2-the End User
`Software License Agreement [“EULA”]
`that was purportedly enacted in 2022.
`Said Declaration was to be provided to
`the Court no later than 9/30/24.
`
`On 9/20/24, Defendants in the Arnoff
`Case filed a “Notice To State Court And
`Adverse Parties Of Removal OfThis
`
`
`
`Action To Federal Court” [ROA 273 in
`Arnoff]. As a result, this Court issued its
`Minute Order of 10/03/24 suspending
`the Arnoff Casein its entirety and
`vacating all future Motions and Hearings.
`
`On 9/30/24, Plaintiff filed the
`Declaration of Megha Shukla in
`Responseto the Court’s September 19,
`2024 Order [ROA 253 in Adams Case].
`
`
`
`As a result of the Removal of the Arnoff
`Case to Federal Court, and the
`suspension ofall proceedings, the Arnoftf
`Case is no longer a part of this Trial or
`this Statement of Decision; and the
`Ruling herein has no effect upon the
`Arnoff Defendants. As the information
`
`7
`
`
`
`requested by the Court of Defendants on
`7/10/24 sought Defendant information
`in both cases; and Defendants’ Response
`of 9/06/24 did not distinguish which
`Defendant information contained in said
`Response was applicable to which case,
`the Court issued its Minute Order of
`10/24/24 requesting that Defendants
`identify which Defendantinformation in
`the Response to the Court’s inquiry of
`7/10/24 applied to the Adams case and
`which information applied to the Arnoff
`case. The Court ordered that said
`information be provided within 7 days of
`the Court’s Order. Defendants timely
`provided such information on 11/01/24.
`
`
`
`ll. The Evidence
`The central issue in this Declaratory
`Relief Trial is which EULA applies to the
`Adams Defendants. As previously set
`forth in Exhibit A, the first EULA (Exhibit
`1 of the Parties’ Stipulated Trial Exhibits)
`contained Section 14.2 which stated that
`“all disputes shall be resolved by
`binding arbitration according to this
`agreement”; and a second provision of
`- Section 14.2 whichstated:
`
`“You and Epson understand and agree
`that (a) the Federal Arbitration
`Act...governs the interpretation and
`enforcementof this Section 14, (b) this
`Agreement memorializes a transaction in
`interstate commerce, and (c) this Section |
`
`
`
`14 shall survive termination ofthis
`Agreement.” [Emphasis Added].
`
`Asindicated on page 26 of Exhibit A,
`this provision does not seek to preserve
`a portion or portions of Section 14;it
`states that all of Section 14
`contractually survives and cannot be
`undone by a subsequent agreement.
`
`As indicated in Exhibit A at page 27,
`Exhibit 2 of the Trial Exhibits (the second
`EULA bearing the “2022” designation on
`one page) contains precisely the same
`language at Section 22.3.
`
`These Sections, along with the decision
`handed downbythe U.S. Supreme Court
`
`
`
`on 5/23/24 (Coinbase v. Suski) as set
`forth on page 28 of Exhibit A, created a
`situation in which this Court would be
`required to determine which EULA
`would apply as to each Defendant.
`
`This is what necessitated the requests to
`Defendants of 7/10/24 and 10/24/24;
`and the request to Plaintiff of 9/19/24.
`Both sides have timely complied with the
`Court’s Requests/Orders.
`
`The pivotal issue in determining what
`EULA would apply is the date on which
`EULA No. 2 (Trial Exhibit 2) would have
`been effective as to each customer.
`There can be no dispute that EULA No. 1
`(Trial Exhibit 1) would have been
`
`
`
`effective for each customer on the date
`of purchase because no EULAis asserted
`by Plaintiff as having existed prior to
`Exhibit 1; nor has Plaintiff suggested that
`a third EULA, created prior to Exhibit 1,
`would be applicable in this case.
`
`Therefore, the only question is when,if
`at all, did Exhibit 2 replace Exhibit 1 as to
`each customer.
`
`The Declaration of Megha Shukla was
`provided by Plaintiff as the Responseto
`the Court’s Order that the Person Most
`Knowledgeable “attest to the effective
`date of Trial Exhibit 2-the End User
`Software License Agreement (“EULA”)
`purportedly enacted in 2022”. The
`
`
`
`Declaration was filed on 9/30/24 as ROA
`251.
`
`The Shukla Declaration sets forth, inter
`alia:
`
`“3. | provide this declaration in response
`to the Court’s September 19, 2024
`inquiry as to the “effective date” of the
`updated EULA(Trial Exhibit Number 2-
`the End User Software License
`Agreement)....
`
`4. The “effective date” of the updated
`EULA for any given owner of a relevant
`Epson printer is the date on which they
`downloadeda firmware update that
`contained the updated EULA and gave
`
`
`
`affirmative assent to those new terms.
`Thus the “effective date” of the updated
`EULA will differ for every consumer-
`claimant defendant. {Emphasis
`original]...
`
`6. Although Epson strongly recommends
`that consumers keep their printers
`updated with the latest software and
`firmware for these benefits, the updates
`are entirely voluntary. Consumers who
`do accept these updates are also asked
`to accept the then-current EULA...
`
`8. Epson finalized the updated EULA that
`is the subject of the Court’s inquiry in
`April 2022 and began the process of
`rolling this EULA out to customersin
`
`
`
`-connection with future firmware
`updates. The release dates of firmware
`vary by printer model and are done
`periodically on no set schedule. Since
`Epson finalized the EULA, there have
`been multiple updates for each printer
`model relevant to this dispute that
`would have contained this updated
`EULA.
`
`9, Firmware updates thatpresented
`users with the updated EULA would have
`requested affirmative assent to the
`updated EULA, consistent with the
`process described above....
`
`11. Epson does not maintain records of
`which users elected to download each
`
`
`
`firmware update and agreed to the
`updated EULA. Nor can Epsontrack this
`data at the level of individual printer
`units (such as by serial number). Thus,
`Epson doesnot have recordsof the date
`on which any userinitiated such a
`firmware update and agreed to the
`updated EULA.” [Emphasis Added].
`
`The Declaration is signed under Penalty
`of Perjury and dated September 30,
`2024.
`
`As such,it is not possible to determine
`which claimants/Defendants,if any,
`would be subject to EULA No. 2 (Exhibit
`2) without specific discovery as to each
`individual Defendant; and such discovery
`
`
`
`could not commencebased on either
`EULA until the “Pre Arbitration Steps”
`(EULA No. 1) or the “Initial Dispute
`Resolution” (EULA No. 2) provisions of
`the controlling EULA is determined to
`have been satisfied, as such
`determination would be a prerequisite
`to the initiation of the Arbitration
`
`process.
`
`Since EULA No. 1 (Exhibit 1) Section 14
`survives any termination of Exhibit 1,
`and Plaintiff cannot demonstrate that
`EULA No. 2 (Exhibit 2) superseded EULA
`No. 1 for any Defendant without
`discovery, the mandated result must be
`that EULA No. 1 Section 14 controls as to
`the Pre Arbitration Process; and who
`
`
`
`determines whether the Pre Arbitration
`Steps of that Section have been satisfied.
`
`On 7/08/24, Epson’s Counsel filed
`“Epson’s Notice of New Decision” with
`an attached copy of an Opinion by the
`Seventh Circuit of the U.S. Court of
`Appeals-Wallrich v. Samsung,et.al. In
`that Opinion, ostensibly, the Court found
`that “...consumers bore the burden of
`producing a valid arbitration agreement
`with Samsung”; and that “...arbitration
`demandsare nothing more than
`allegations.”
`|
`
`The Declaration of Morris Dweck in
`Support of Defendants’ July 10, 2024
`Trial Order Production, and the Errata
`
`
`
`thereto, were filed on 9/06/24 and
`9/11/24 [ROA 241]; and contained a
`spreadsheetlisting the namesof each
`Defendant and information available for
`each Defendant’s printer, including
`model number, serial number, and
`purchase month and year, if known.
`Some of the Defendants had no
`
`information.
`
`In response to the Court’s Minute Order
`of 10/24/24, Defendantsfiled the
`Declaration of Morris Dweck on
`11/01/24 with attached Exhibits A and B.
`Exhibit A (per Mr. Dweck’s Declaration)
`contained a list of all Defendants in the
`Adamscasethat provided specific
`information regarding their claims
`
`
`
`against Epson. The overwhelming
`majority of the Defendants identified in
`this list provided the Epson Model
`Number, Serial Number, Purchase
`Month, and Purchase Year. Some of the
`Defendantsin this Exhibit A did not
`provide information in all categories.
`All of the Defendantslisted in Exhibit A
`(683) provided their Eoson Model
`Number, their Name, and their Purchase
`Month and Year, with 7 exceptions-all of
`whom provided the Serial Number to
`their Epson Product. Some of these
`Defendants indicated that they had
`“Disposed” of their product butstill
`provided Serial Numbers and/or Model
`Numbers.
`
`
`
`The Defendantslisted in Exhibit B to the
`Dweck Declaration of 11/01/24 provided
`no information other than their name;
`with some Defendants saying they had
`Disposed of their product and some
`giving a Month and Year of Purchase.
`
`A true and correct copy of the
`Declaration of Morris Dweck and the
`attached Exhibits A andBfiled 11/01/24
`is attached hereto marked as Exhibit “B”.
`
`lll. Analysis
`Epson cites to a U.S. Court of Appeals
`case from the 7" Circuit in urging that
`the duty to establish the existence of an
`EULA is on the consumer [Wallrich v.
`Samsung]. While this Court is not bound
`
`
`
`by a Federal decision, Plaintiff’s
`Complaint is one for Declaratory Relief,
`and therefore, sounds in Equity.
`Ostensibly, Plaintiff seeks a Judicial
`Determination that Plaintiff and
`Defendants do not have an agreement to
`arbitrate. Plaintiff argues that the Adams
`Defendants have not adequately
`satisfied the requirement of informal
`resolution under either EULA because
`they have not provided sufficient
`information to demonstrate,inter alia,
`that they ever purchased an Epson
`Product.
`
`Obviously, Exhibit A to the Declaration of
`Morris Dweck, in which thereis a list of
`683 defendants who have providedserial
`
`
`
`numbers and dates of purchase, belies
`such a contention. As to those
`Defendantslisted in Exhibit A, such a
`requirement, to the extent thatit exists
`as described by Plaintiff and the cited 7"
`Circuit Federal case, has been satisfied.
`
`The next question, however, is at what
`point must this information be provided
`to satisfy Controverted Issues 1, 2 and 3.
`And that question is answered by the
`Court in determining which EULA would
`apply; and who is to make the
`determination as to those Controverted
`Issues pursuant to the terms of the
`controlling EULA.
`
`
`
`As set out hereinabove, Plaintiff cannot
`give the Court an effective date for EULA
`No. 2 because such effective date would
`
`be different for each customer
`_ depending on when,and if, they
`downloaded firmware updates; and
`Epson has no record of when,or if, a
`customer downloaded firmware updates
`[Declaration of Meghan Shukla (ROA
`251) at paragraphs 4 and 11]. Soin the
`absence of evidence of such download,
`EULA No. 2 cannot be established as to
`any Defendant, even if Section 14 of
`EULA No. 1 did not have the clause
`stating that said Section 14 survives the
`termination of EULA No.1.
`
`
`
`As such, EULA No.1 (Exhibit 1) must
`apply; and Section 14, which by its own
`terms “shall survive the termination of
`this Agreement”, must control. Section
`14.3 states that a claimant and Epson
`will try to resolve any “Dispute”
`informally for 60 days before submitting
`a claim to Arbitration. Section 14.1
`specifically defines “Dispute”:
`
`14.1 Disputes. The terms of this Section
`14 shall apply to all Disputes between
`you and Epson. The term “Dispute”is
`meant to have the broadest meaning
`permissible under law and includes any
`dispute, claim, controversy or action
`between youand Epson arising out of or
`relating to this Agreement, the Software,
`
`
`
`Epson Hardware, or other transaction
`involving you and Epson, whether in
`contract, warranty, misrepresentation,
`fraud, tort, intentional tort, statute,
`regulation, ordinance, or any other legal
`or equitable basis...
`
`Section 14.3 of EULA No.1 requires, prior
`to submitting a claim to arbitration, that
`a Dispute Notice be submitted to Epson.
`Section 14.3 states, in relevant part:
`
`14.3....Notice of the Dispute shall include
`the sender’s name, address and contact
`information, the facts giving rise to the
`Dispute, and the relief requested (the
`“Dispute Notice”). Following receipt of
`the Dispute Notice, Epson and you agree
`
`
`
`to act in good faith to resolve the
`Dispute before commencingarbitration.
`
`In essence, therefore, Defendants in this
`case were required to provide 5 things to
`Epson per Section 14.3:
`
`1. Their name
`
`2. Their address and contact
`
`S&SW
`
`information
`. The facts giving rise to the Dispute
`The relief requested
`5. To act in good faith
`
`Epson has argued that the informal
`Dispute Resolution processset forth in
`Section 14.3 of EULA No.1 has not been
`satisfied by Defendants because they
`
`
`
`have not provided sufficient information
`and therefore have not acted in good
`faith as required by Section 14.3 to
`resolve the disputes. Additionally, Epson
`argues, under Wallrich v. Samsung, that
`Defendants have not established the
`
`existence of an EULA between
`themselves and Epson.
`
`Epson’s claim that Defendants did not
`act in good faith under Section 14.3 Isa
`“Dispute” as defined under Section 14.1.
`It is a “claim” or “controversy” “arising
`out of or related to this “Agreement
`whetherin...misrepresentation,
`fraud,...or any other legal or equitable
`basis.”
`
`
`
`Epson’s claim that no EULA exists
`because Defendants have not proved
`that they have such an Agreement under
`Wallrich is likewise problematic because
`Section 14.1 defined “Dispute” as “any
`claim or controversy...arising out of or
`relating to this Agreement. To the extent
`that Epson wishes to claim that there is
`no Agreement between a claimant and
`Epson, and the claimant claims that
`there is an Agreement, that is a claim or
`controversy “related”to the
`Agreement.
`
`Section 14.6 sets forth who shall resolve
`“All Disputes”, including “formation”of
`the Agreement:
`
`
`
`14.6 Arbitration Procedure
`..All Disputes shall be resolved by a
`single neutral arbitrator...The arbitrator,
`and not any federal, state or local court
`or agency, shall have exclusive authority
`to resolve all disputes arising out of or
`relating to the interpretation,
`applicability, enforceability or formation
`of this Agreement...[Emphasis Added].
`
`As such, the existence of the EULA, and
`the satisfaction of the Pre Arbitration
`Process in EULA No.1, must both be
`resolved by the Arbitrator.
`
`All of that being said, Defendantsarestill
`under some obligation to provide “facts
`giving rise to the dispute” and to act “in
`
`
`
`good faith” under Section 14.3 of EULA
`No.1. This should mean, at a minimum,
`that they provide some indicia of existing
`or prior ownership of an Epson product.
`For it to be otherwise, anyone could
`posit a claim with Epson by simply
`asserting that they once owned an
`Epson product; and while, technically,
`under a strict interpretation of Epson’s
`EULA No.1 as set forth hereinabove,
`such is possible due to Epson’s own
`wording, Epson’s Action is one in Equity.
`As such,this is a Court of Equity; and in
`Equity, the Law is not robotic and an
`Equity Court is not a robot.
`
`Attachment A to Exhibit E (Defendants’
`identification of Adams only Defendants
`
`
`
`who provided information on Epson
`Models, Serial numbers, etc.) lists the
`Defendants who have provided such
`indicia; and to the extent that EULA No.
`1 requires the Arbitrator to determine all
`aspects of said EULA, these Defendants
`claims must be submitted to Arbitration
`
`at JAMS forthwith-even to determine if
`the Pre Arbitration steps weresatisfied.
`
`Those Defendantsidentified in
`Attachment B, who have provided no
`information other than their name and
`time of purchase, have not yet
`established that they are subject to the
`EULA and mayeither submit further
`information to satisfy that they are
`subject to the EULAor file their class
`
`
`
`action as they would not be subject to
`the prohibition on class action if they are
`not subject to the EULA.
`
`IV. Findings
`
`1. Pursuant to the dictates of Coinbase
`v. Suski, et. al. (2024) 2024 DJDAR
`4381, this Court is required to
`determine which of two conflicting
`End User License Agreements
`(EULA) controls with respect to
`what entity will determine certain
`provisions of said EULA’s. For the
`reasons stated in this Statement of
`Decision, the Court determinesthat
`EULA No. 1, Exhibit 1 in this Trial, is
`the controlling Agreement.
`
`
`
`2. Pursuant to the requirements of
`EULA No. 1, Exhibit 1 in this Trial,
`the Arbitrator shall determine
`
`whether or not the “Pre-Arbitration
`Steps and Notice”set forth in
`Section 14.3 of Exhibit 1 have been
`satisfied as to those Adams
`
`Defendants identified in Attachment
`
`A to Exhibit B herein.
`
`3. As to those Adams Defendants
`identified in AttachmentB to Exhibit
`B, this Court determines that there
`is insufficient evidence to establish
`that they are subject to Exhibit 1,
`EULA No.1, and therefore are not
`required to comply with any aspect
`
`
`
`thereof; and mayfile a class action
`if they so chose.
`
` Dated NOV 12 2024
`
`Lon F. Humwitz
`Judge Presiding
`
`
`
`EXHIBIT A
`
`
`
`SUPERIOR COURT OF CALIFORNIA,
`COUNTY OF ORANGE
`CIVIL COMPLEX CENTER
`
`MINUTE ORDER
`
`DATE:07/10/2024 TIME: 02:45:00 PM=DEPT: CX103
`
`JUDICIAL OFFICER PRESIDING:Lon F. Hurwitz
`CLERK:S. Turner
`_
`REPORTER/ERM: None
`BAILIEFFICOURT ATTENDANT: None
`
`CASENO: 30-2023-01313431-CU-MC-CXC CASEINIT.DATE: 03/13/2023
`CASETITLE: Epson America, Iric. vs. Adams__
`——
`CASE CATEGORY:Civil - Unlimited|CASE TYPE: Misc Complaints - Other
`
`EVENT ID/DOCUMENTID:74335676
`EVENT TYPE: Chambers Work
`
`APPEARANCES
`
`There are ho appearances byany party.
`
`The Court, having reviewedtheBriefing, Stipulations, and Exhibits subnilifed by Counsel, nowissuesits’
`Order and Analysesas setforthin the attached.
`This matter is removed from the Subniltted: List until there is compliance. with the Court's Orderfor
`further information asset forthin the attached Order and Analysés.
`
`pateq(UL182024
`
`DEPT: GX103
`
`Calendar No.
`
`
`
`ANALYSES AND_ORDER ON THE
`BIFURCATED TRIAL IN:
`EPSON AMERICA,INC. v. MATT ADAMS
`ET. AL., OCSC CASE NO. 2023-01313431;
`EPSON AMERICA,INC. v. GRAESON
`ARNOFF, ET. AL., OCSC CASE NO. 2023-
`01315890
`
`The Complaints in these related matters
`werefiled by Plaintiff Epson [hereinafter
`“Epson”] on 3/13/23. Epson v. Adams
`[hereinafter “Adams Case”](lead case-
`lower case number) wasfiled at 5:21
`p.m. Epson v. Arnoff [hereinafter “Arnoff
`Case”] wasfiled at 4:00p.m. that same
`day.
`
`
`
`
`
`The Arnoff Case wasinitially assigned to
`Judge Peter Wilson. The Adams Case was
`assigned to this Court. As the two cases
`were deemedrelated, and this Court had
`the lower case number, the Arnoffcase
`was transferred to this Court and
`deemed related to the Adams Case.
`
`This Court will take Judicial Notice ofits
`entire file in both of these cases
`pursuant to Evidence Code Sections 452
`(d) and (h).
`
`While both cases set forth one cause of
`action each, to wit: Declaratory Relief,
`the Court notedthat the two Complaints
`soughtdifferent relief. The Adams Case
`seeks a Judicial Declaration that the
`
`2
`
`
`
`
`
`Defendants and Epson “...do not have an
`agreementto arbitrate...” [Paragraph 25,
`No. (i) of the Adams Complaint]; and
`that Defendants must dismisstheir
`
`individual claims with JAMS...”
`[Paragraph 25, No. (ii) of the Adams
`Complaint]. The Arnoff Complaint seeks
`a Judicial Declaration that “...Defendants
`are bound by the EULA...” [Paragraph 29,
`No.(i) of the Arnoff Complaint]; and that
`Defendants “...have not complied with
`the EULA’s mandatory informal dispute
`resolution requirement...” [Paragraph 29,
`No.(ii) of the Arnoff Complaint]. “EULA”
`is defined within each Complaint as
`“End-User Software License Agreement”;
`and, as such, the “End User Software
`
`
`
`
`
`License Agreements”will be referred to
`hereinafter as “EULA’s” and/or “EULA”.
`
`The Parties submitted a list of 37
`Stipulations of Fact applicable to both
`cases (ROA 148-filed 1/24/24-marked
`herein as Exhibit A is the most recent. An
`earlier version wasfiled under ROA 139,
`but appears to be identical to ROA 148).
`Stipulation No. 1 of Exhibit A specifies
`that there are two versions of the EULA
`that are included as Trial Exhibits 1 and
`2. Footnote No.1 of the of Exhibit A
`specifies that the Parties stipulate to the |
`authenticity and admissibility of Trial
`Exhibits 1 and 2.
`
`
`
`
`
`Hereinafter,all Exhibits designated by
`number are Trial Exhibits; all designated
`by letter are Exhibits to this Ruling.
`
`As part of the same set of Stipulations,
`the Parties set forth, in Stipulation No. 2
`of Exhibit A the provisions of Section
`14.3 of Exhibit 1 and 22.2 of Exhibit 2 as
`to the “...language contained within the
`Previous Epson EULA and Current Epson
`EULA...” but not to “...which versionof
`the EULA governs the issues tobetried
`or any particular consumer claimant
`defendant’s claim should it proceed to
`arbitration.” Footnote No.2 of Exhibit A.
`
`While Stipulation No. 2 is superfluous
`given Stipulation No. 1, which admits
`
`5
`
`
`
`
`
`each EULAintoevidencein its entirety,
`the language of Footnote No.2 is critical
`for the reasons morefully set forth
`hereinbelow.
`In reviewing the Arbitration provisions of
`each of two different EULA’s, the Court
`did indeed findthat each contained a
`requirement that thereinitially be an
`attempt at informal resolution before a
`Claim For Arbitration could be made, as
`indicated in Stipulation of Fact No. 2.
`Exhibit 1 contained such provisionat
`Section 14.3. Exhibit 2 contained such
`provision at Section 22.2.
`
`Based uponthesevirtually identical
`provisions, the Court elected to bifurcate
`theTrial of these Declaratory Relief
`
`6
`
`
`
`
`
`
`
`Actions and first try the issues of (1)
`what was necessaryto satisfy this
`requirement for an attempt at informal
`resolution and (2) whether such
`provision of each EULA wasinfact
`satisfied. Trial was set to commence on >
`1/29/24.
`
`On 1/23/24, the Parties submitted the
`aforementioned Stipulations of Fact
`(Exhibit “A”); certain exhibits [Stipulated
`Exhibits; and Stipulations to Limit
`Evidence and Arguments. Additionally,
`they submitted their Joint Statement of
`Controverted Issues and their Stipulation
`to waive thepresentation of witness
`testimonyin light of the above
`submissions; electing to submit said
`
`
`
`
`
`Stlpulations of Fact, Exhibits, and their
`respective Briefs to the Court; with oral
`argumentonly occurring should any
`Party request same orat the Court’s |
`discretion. They thereby requested that
`the Trial date of 1/29/24 gooff calendar.
`The Court approved this Stipulation and
`signed the Proposed Order on 1/24/24.
`
`Thereafter, the Parties submitted their
`Initial Briefs, pursuant to their
`Stipulation, on 2/7/24; and their Reply
`Briefs, pursuant to the Stipulation, on
`2/28/24. The Court thereafter waited a
`sufficientperiod to allow both sidesto
`consider therespective Reply Briefs and
`determine if they wished, pursuant to
`
`
`
`
`
`their Stipulation, to request oral
`argument.
`©
`
`|
`
`On3/28/24, having received no request
`by any of theParties for oral argument,
`the Court issued its Minute Order of
`3/28/24 [a true and correct copy of
`whichis attached hereto as Exhibit “B”]
`requesting that the Parties provide
`further briefing regarding the 3/27/24
`published ruling by the SecondDistrict
`Court of Appeal, Division One, entitled
`Brian Weeksv. Interactive Life Forms
`LLC, Case number 2024 DJDAR 2703.
`Said Supplemental Briefing was
`requested by the Court to be filed no
`later than 4/19/24, at which time the
`case would be deemed submitted.
`
`
`
`9
`
`
`
`
`
`The Partiestimely filed said requested
`supplemental Briefing and the matter
`was deemed submitted as of 4/19/24.
`
`After reviewing the Supplemental
`Briefing by the Parties, the Court
`concludes that the Weeks decision
`supra, is distinguishable from these
`cases and thereforeis not applicable to
`this Phase of the Bifurcated trial of these
`
`
`
`—
`
`matters.
`
`|
`
`|.
`
`The Joint List of Controverted
`
`Issues
`The Partieslist two agreed upon
`Controverted Issues for this Phase 1 of
`the Bifurcated Trial of these
`Declaratory Relief matters:
`
`
`
`
`
`1. Whatis required under theinitial
`dispute resolution provisions
`(Sections 22.2 and 14.3) in Epson’s
`End User License Agreements?
`2. Wasthis requirementsatisfied
`before Defendantsfiled arbitration
`claims against Epsonin JAMS?
`
`A third Controverted Issue has been
`listed by Defendants as being a part of
`this Phase 1 of Trial; which Plaintiff
`disputes:
`3.
`Is compliance with the 60 day
`Notice provision in Section 14.3 or
`22.2 of the EULA(s) delegated to the
`arbitrators?
`
`
`
`
`
`_ While the Court’s Minute Order of
`8/17/23 (ROA 100) references the 60
`day provision separate and apart from
`theotherissues, by questioning
`whether or not it was exercised,
`whetheror notit was satisfied, and
`what would constitute satisfaction of
`the 60 day provision, these questions,
`and this third Controverted Issue,is
`subsumed into Controverted Issue No.
`1. Additionally, as the Parties’
`Stipulated Fact No. 2 in Exhibit A
`specifically references the 60 day
`provisions in both EULA’s, it would be ©
`impossible to determine Controverted
`Issue No. 1 without, as an elementof
`such determination, also determining
`Controverted Issue No. 3.
`
`
`
`
`
`ll. The Dec Relief Requested
`Plaintiff has requested twodifferent
`determinations from this Court: (1) a
`determination in the AdamsCase that
`Epson and the Defendantsin that case
`“,.do not have an agreementto
`arbitrate...and Defendants must
`dismiss their individual claims with
`JAMS...” [Paragraph 25 of Adams
`Complaint].
`
`The Arnoff Case seeks a declaration
`that “...Defendants are bound by the
`EULA...” and that Defendants “...have
`not complied with the EULA’s
`mandatory informal dispute resolution
`requirement...” [Paragraph 29 of Arnoff
`Complaint].
`
`13:
`
`
`
`
`
`Plaintiff has represented tothis Court
`that it is not possible for them to
`obtain dates of purchase for each
`Defendant. As such, these two
`completely different requests for
`declaratory relief cannot differentiate
`as between which Defendants may
`have purchased a subject Epson
`product before the effective date of
`Exhibit 2 and which Defendants made
`such purchaseafter the effective date
`of Exhibit 2. While Plaintiff argues that
`Exhibit 2, in essence, superseded
`Exhibit 1 for purposes of these cases,
`for the reasonsset forth hereinbelow,
`such is not the case.
`
`
`
`
`
`Separate and apart from that,if, as
`Plaintiff argues in Adams,there is no
`Agreementto arbitrate, then thereis
`no requirementto satisfy any “Pre-
`Arbitration Steps and Notice” under
`Section 14.3 of Exhibit 1, because the
`Agreement would not exist-nor would
`the prohibitions under Section14.5 of
`Exhibit 1.
`
`ll. The EULA’s
`Epson has designated two documentsas
`being the operative EULA’s in these
`cases. They are submitted as Exhibits 1
`and 2 and are admitted into evidence
`per Stipulation of the Parties. Neither
`documentis dated, with the exception of
`
`
`
`
`
`Exhibit 2, at the bottom left corner of the
`last page showing “2022”.
`
`Exhibit 1 is the EULA which providesthat
`JAMS (Judicial Arbitration and Mediation
`Services) shall be the Arbitration
`Provider under JAMS Rules [Section 14.6
`of Exhibit 1]. Exhibit 2 provides that
`JAMS shall be the Arbitration Provider
`UNLESS “...20 or more Arbitration
`Demandsarefiled relating to the same
`or similar subject matter sharing
`common issues of law or fact, and
`counsel for the parties submitting the
`demands are the sameor coordinated...”
`in which case the matter(s) shall
`constitute a “Mass Arbitration”: andsaid
`“Mass Arbitration shall not be
`
`
`
`
`
`adjudicated by JAMS, but by FedArb
`under FedArbRules [Section 22.6 of
`Exhibit 2].
`
`Section 14.5 of Exhibit 1 sets forth,in
`bold print and all caps:
`
`“14.5 WAIVER OF CLASS ACTIONS AND
`
`CLASS ARBITRATIONS. YOU AND EPSON
`
`AGREE THAT EACH PARTY MAY BRING
`
`DISPUTES AGAINST THE OTHER PARTY
`ONLY IN AN INDIVIDUAL CAPACITY, AND
`NOT AS A PLAINTIFF OR CLASS MEMBER
`
`IN ANY CLASS OR REPRESENTATIVE
`PROCEEDING, INCLUDING WITHOUT
`LIMITATION FEDERAL ORSTATE CLASS
`ACTIONS, OR CLASS ARBITRATIONS,
`CLASS ACTION LAWSUITS, CLASS-WIDE
`
`
`
`
`
`ARBITRATIONS, PRIVATE ATTORNEY
`GENERAL ACTIONS, AND ANY OTHER
`PROCEEDING WHERE SOMEONE ACTSIN
`
`A REPRESENTATIVE CAPACITY ARE NOT
`ALLOWED. ACCORDINGLY, UNDER THE
`ARBITRATION PROCEDURES OUTLINED
`IN THIS SECTION, AN ARBITRATOR
`SHALL NOT COMBINE OR CONSOLIDATE
`MORE THAN ONE PARTY’S CLAIMS
`
`WITHOUT THE WRITTEN CONSENTOF
`
`ALL AFFECTED PARTIES TO AN
`ARBITRATION PROCEEDING. |Emphasis
`added].
`
`Section 14.5 of Exhibit 1 is in direct
`
`contravention with Section 22.6 of
`Exhibit 2; and while Plaintiff might argue
`that Exhibit 2 supe
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