On 04/02/2020 KARAPET KAVOUKJIAN filed a Contract - Other Contract lawsuit against PRINCESS CRUISE LINES LTD. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.
*******2978
04/02/2020
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
SERENA R. MURILLO
KAVOUKJIAN KARAPET
PRINCESS CRUISE LINES LTD. DBA PRINCESS CRUISES
PRINCESS CRUISE LINES LTD.
MURRAY CHARLES L III
6/17/2020: Order (name extension) - Order Proposed Order Re Motion to Enforce Arbitration Clause
10/29/2020: Minute Order - Minute Order (Hearing on Motion for Order to Enforce Arbitration Clause and...)
10/29/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Order to Enforce Arbitration Clause and...) of 10/29/2020
10/29/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
10/16/2020: Opposition (name extension) - Opposition TO MOTION TO COMPEL ARBITRATION AND DISMISSAL
10/22/2020: Request for Judicial Notice - Request for Judicial Notice
8/24/2020: Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information
6/29/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order) of 06/29/2020
6/17/2020: Declaration (name extension) - Declaration of Lisa Black In Support of Motion to Enforce Arbitration Clause
6/17/2020: Declaration (name extension) - Declaration of Barbara Kennedy In Support of Motion to Enforce Arbitration Clause
6/17/2020: Notice of Motion - Notice of Motion
6/17/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities
6/3/2020: Amended Complaint - Amended Complaint
4/2/2020: Complaint - Complaint
4/2/2020: Civil Case Cover Sheet - Civil Case Cover Sheet
4/2/2020: Civil Case Cover Sheet - Civil Case Cover Sheet
4/2/2020: First Amended Standing Order - First Amended Standing Order
4/2/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
Hearing09/15/2021 at 09:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Post-Arbitration Status Conference
DocketNon-Jury Trial scheduled for 09/30/2021 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 10/30/2020
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/06/2023 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 10/30/2020
DocketUpdated -- Order Proposed Order Re Motion to Enforce Arbitration Clause: Filed By: PRINCESS CRUISE LINES LTD. (Defendant); Result: Granted; Result Date: 10/29/2020
DocketThe case is placed in special status of: Stay - Binding Arbitration
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by: Clerk
DocketPost-Arbitration Status Conference scheduled for 09/15/2021 at 09:30 AM in Spring Street Courthouse at Department 26
DocketUpdated -- Order Appointing Court Approved Reporter as Official Reporter Pro Tempore: Document changed from Order Determining Claim of Exemption to Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; As To Parties: removed
DocketMinute Order (Hearing on Motion for Order to Enforce Arbitration Clause and...)
DocketCertificate of Mailing for (Hearing on Motion for Order to Enforce Arbitration Clause and...) of 10/29/2020; Filed by: Clerk
DocketUpdated -- Amended Complaint 1st: Name Extension: 1st; As To Parties changed from PRINCESS CRUISE LINES LTD. (Defendant) to PRINCESS CRUISE LINES LTD. (Defendant)
DocketNon-Jury Trial scheduled for 09/30/2021 at 08:30 AM in Spring Street Courthouse at Department 26
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/06/2023 at 08:30 AM in Spring Street Courthouse at Department 26
DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse
DocketComplaint; Filed by: KARAPET KAVOUKJIAN (Plaintiff); As to: PRINCESS CRUISE LINES LTD. (Defendant)
DocketCivil Case Cover Sheet; Filed by: KARAPET KAVOUKJIAN (Plaintiff); As to: PRINCESS CRUISE LINES LTD. (Defendant)
DocketSummons on Complaint; Issued and Filed by: KARAPET KAVOUKJIAN (Plaintiff); As to: PRINCESS CRUISE LINES LTD. (Defendant)
DocketCivil Case Cover Sheet; Filed by: KARAPET KAVOUKJIAN (Plaintiff); As to: PRINCESS CRUISE LINES LTD. (Defendant)
DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk
DocketFirst Amended Standing Order; Filed by: Clerk
Case Number: 20STLC02978 Hearing Date: October 29, 2020 Dept: 26
Kavoukjian v. Princess Cruise Lines, Ltd., et al MOTION TO COMPEL ARBITRATION AND
STAY PROCEEDINGS (CCP §§ 1281.2, et seq., 638) TENTATIVE
RULING: Defendant Princess Cruise Lines, Ltd.’s Motion to Enforce Arbitration
Clause and Stay Action is GRANTED. ANALYSIS: Plaintiff
Karapet Kavoukjian (“Plaintiff”) filed the instant action for breach of
contract and negligence against Defendant Princess Cruise Lines, Ltd.
(“Defendant”) on April 2, 2020. Plaintiff filed a First Amended Complaint on
June 3, 2020. On June 17, 2020, Defendant filed the instant Motion to Compel
Arbitration and Stay Proceeding, or in the alternative, Dismiss the Action.
Plaintiff filed an opposition on October 16, 2020 and Defendant replied on
October 22, 2020. Discussion Existence of an Arbitration
Agreement The
arbitration agreement invokes the Federal Arbitration Act and is governed by
federal maritime law: Under
the FAA, a “written provision in ... a contract evidencing a transaction
involving commerce to settle by arbitration a controversy thereafter arising
out of such contract or transaction ... shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.” 9 U.S.C. § 2. Because arbitration is a matter of
contract, the question of arbitrability is, in principle, an issue for judicial
determination. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct.
588, 154 L.Ed.2d 491, (2002). The court's role in addressing a question of
arbitrability is “limited to determining (1) whether a valid agreement to
arbitrate exists, and if it does, (2) whether the agreement encompasses the
dispute at issue.” Chiron Corp., 207 F.3d at 1130. If the court finds that both
of these requirements are met, the FAA requires it to enforce the provision in
accordance with its terms. Id. (Saperstein
v. Thomas P. Gohagan & Company (N.D. Cal. 2020) 2020 WL 4464915, *4.) Defendant
presents evidence that Plaintiff booked a cruise through a travel agent,
Expedia Cruiseship Centers (“Expedia”). (Motion, Black Decl., ¶5.) Defendant
does not indicate when the cruise was booked. (Id. at ¶¶3-5 and Exhs.
1-3.) Defendant contends that the booking confirmation was sent to both
Plaintiff and Expedia, but offers no documentary evidence to support this. (Id.
at ¶¶4-5 and Exhs. 2-3.) The
booking confirmation expressly states that by booking a cruise every passenger
agrees to the terms of the Passage Contract. (Id. at ¶¶5-6 and Exhs.
1-3.) Prior to the start of the cruise, every passenger is required to complete
Defendant’s online “Cruise Personalizer,” in order to review and print
travel-related documents. (Id. at ¶7.) Defendant’s records show that
Plaintiff accessed the Cruise Personalizer and accepted the Passage Contract by
checking the dialog box clicking the acceptance button on December 17, 2018. (Id.
at ¶10 and Exh. 1.) The
introductory paragraph of the Passage Contract immediately directs the reader
to Section 15, which contains the following arbitration provision: All
claims other than for emotional harm, bodily injury, illness to or death of a
Guest, whether based on contract, tort, statutory, constitutional or other
legal rights, including without limitation alleged violations of civil rights, discrimination,
consumer or privacy laws, or for any losses, damages or expenses, relating to
or in any way arising out of or connected with this Passage Contract or Guest's
cruise, with the sole exception of claims brought and litigated in small claims
court, shall be referred to and resolved exclusively by binding arbitration . .
. . (Id.
at Exh. 4, § 15.) Defendant
cites the two-part test under federal law for whether a passenger is bound by
the terms of the passenger contract, which exams the physical characteristics
of the ticket/contract and “any extrinsic factors indicating the passenger’s
ability to become meaningfully informed of
the contractual terms at stake.” (Deiro v. American Airlines, Inc. (9th
Cir. 1987) 816 F.2d 1360, 1364.) For the
first prong, as discussed above, the arbitration provision is plainly
referenced at the start of the Passage Contract in bold type and capital
letters. (Motion, Black Decl., Exh. 4, § 15.) The physical characteristics of
the Passage Contract clearly put passengers on notice of the arbitration
provision. Regarding
the second prong, [T]he
circumstances surrounding the passenger’s purchase and subsequent retention of
the ticket/contract may be of equal importance as the prominence of warnings
and clarity of conditions in deciding whether a provision should be held to
bind a particular passenger.” Id. at 865. The surrounding circumstances to be
considered include the passenger's familiarity with the ticket, the time and
incentive under the circumstances to study the provisions of the ticket, and
any other notice that the passenger received outside of the ticket. Id. at 866. (Ibid.
[citing Shankles v. Costa Armatori, S.P.A. (1st Cir. 1983) 722 F.2d 861,
865-66].) Defendant offers no evidence that the booking confirmation was
actually sent to Plaintiff or Expedia except for a single conclusory statement
from a Manager in the Customer Relations and Communications Department. (Motion,
Black Decl., ¶¶1, 4-5.) No documentary evidence supports the statement
regarding transmission of the booking confirmation to either Plaintiff or
Expedia, or the date on which this occurred. However, Defendant has
demonstrated that the Cruise Personalizer mandates that passengers read the Passage
Contract before printing boarding passes or boarding the ship. Defendant,
therefore, has shown that Plaintiff had an opportunity to become familiar with
the Passage Contract. Therefore,
Defendant carries its initial burden of proof to show that a valid agreement to
arbitrate exists and that the agreement encompasses the dispute at issue. Defense to Enforcement of
Arbitration Agreement The burden
now shifts to Plaintiff to prove any facts necessary to defense of enforcement
of the arbitration agreement. In opposition, Plaintiff argues that the evidence
shows that he purchased the cruise tickets in September 2018 and therefore
cannot be subject to an arbitration agreement that was purportedly added to the
terms two months later. Plaintiff also argues that there is no evidence that
Expedia was his agent for purposes of the consenting to the arbitration
agreement, and in fact, Defendant’s evidence does not show that Expedia either
received the Passage Contract or communicated its terms to Plaintiff prior to
purchase of the tickets. As discussed above, Defendant provided Plaintiff with
access to the Passage Contract. Plaintiff offers no federal authority with
respect to the two-prong test and why access to the Passage Contract prior to
purchase of the tickets is relevant under such authority. In fact, under
federal law receipt of the contract after purchase of the tickets does
not disprove reasonable notice. (Gonzalez-Martinez v. Royal Caribbean
Cruises Ltd. (D.P.R. 2015) 94 F.Supp.3d 147, 154.) Receipt of the contract
prior to embarking on the cruise is sufficient. (Ibid.) Finally,
Plaintiff argues that the arbitration agreement is unconscionable because he
had no real choice in accepting it. Specifically, because upon paying for the
tickets in October 2018, passengers are subject to a 50-75 percent cancellation
policy, and therefore, cannot opt out of the arbitration agreement purportedly
added two months later. Again, Plaintiff does not cite any federal authority to
show that the cancellation policy renders the arbitration provision unenforceable.
The only
federal case to which Plaintiff cites is Nguyen v. Barnes & Noble Inc.
(9th Cir. 2014) 763 F.3d 1171, which is distinguishable from the facts of this
case. In Nguyen, the Ninth Circuit Court of Appeals held that “where a
website makes its terms of use available via a conspicuous hyperlink on every
page of the website but otherwise provides no notice to users nor prompts
them to take any affirmative action to demonstrate assent, even close
proximity of the hyperlink to relevant buttons users must click on—without
more—is insufficient to give rise to constructive notice.” (Nguyen v. Barnes
& Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1178-1179 (emphasis added).)
Here, passengers were required to take affirmative action to demonstrate assent
to the Passage Contract and Plaintiff did so by checking the dialog box clicking
the acceptance button on December 17, 2018. Even under the standard articulated
in Nguyen, Plaintiff was provided reasonable notice of the Passage
Contract. Therefore,
the Court finds Plaintiff has not carried his burden to prove facts necessary
to defense to enforcement of the arbitration agreement. Conclusion Defendant Princess Cruise Lines, Ltd.’s Motion to Enforce Arbitration
Clause and Stay Action is GRANTED. Moving
party is ordered to give notice.
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