Bugarin v. All Nippon Airways Co., Ltd.

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 ASHLEY BUGARIN, Case No. 20-cv-03341-BLF

10 Plaintiff, ORDER DENYING MOTION TO 11 v. COMPEL ARBITRATION; AND GRANTING MOTION TO DISMISS 12 ALL NIPPON AIRWAYS CO., LTD., SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND 13 Defendant. [Re: ECF 35] 14

15 16 In this putative class action, Plaintiff Ashley Bugarin (“Bugarin”) seeks to represent a 17 nationwide class of persons who did not receive refunds when their flights on Defendant All 18 Nippon Airways Co., Ltd. (“ANA”) were cancelled or rescheduled as a result of the COVID-19 19 pandemic. The operative second amended complaint (“SAC”) asserts a single claim for breach 20 contract, alleging that ANA’s Conditions of Carriage (“COC”)1 obligate ANA to refund the ticket 21 price for a cancelled or rescheduled flight. ANA moves to compel arbitration or, in the 22 alternative, to dismiss the SAC for failure to state a claim under Federal Rule of Civil Procedure 23 12(b)(6). 24 For the reasons discussed below, the motion to compel arbitration is DENIED and the 25 motion to dismiss is GRANTED WITH LEAVE TO AMEND. 26

27 1 Bugarin refers to this document as the “Contract of Carriage” in her SAC, although the document 1 I. BACKGROUND 2 Bugarin filed this action on May 15, 2020 and thereafter filed a first amended complaint 3 (“FAC”) as of right alleging claims for breach of contract and rescission. See Compl., ECF 1; 4 FAC, ECF 15. The Court granted ANA’s motion to dismiss the FAC under Rule 12(b)(6) with 5 leave to amend the contract claim only. See Order Granting in Part and Denying in Part Motion to 6 Dismiss (“Prior Order”), ECF 31. The Court found that the rescission claim was preempted by the 7 Airline Deregulation Act, 49 U.S.C. § 41713, and thus that leave to amend that claim would be 8 futile. See id. Bugarin filed the operative SAC on February 5, 2021, reasserting only the contract 9 claim. See SAC, ECF 32. 10 Bugarin alleges that in November 2019, she purchased tickets from a third-party online 11 vendor, asaptickets.com (“ASAP”), for two round-trip flights to Japan on ANA. SAC ¶ 25. The 12 outbound flight from San Jose, California to Tokyo, Japan was scheduled for March 23, 2020, and 13 the return flight from Tokyo to San Francisco, California was scheduled for April 8, 2020. Id. 14 Bugarin paid approximately $805 per round-trip ticket for a total of $1609.70. Id. The return 15 flight was cancelled due to the COVID-19 pandemic. Id. 16 When Bugarin contacted ASAP to obtain a refund for the cancelled return flight, she was 17 informed that she would have to pay $200 per ticket to obtain a refund. SAC ¶ 18. Instead of 18 paying the $200 fee, Bugarin decided to seek a refund directly from ANA. Id. ¶ 19. According to 19 Bugarin, ANA was contractually obligated to provide her with a refund for the cancelled flight 20 under its COC. SAC ¶ 12 & Exh. A. Bugarin claims that ANA breached its COC by failing to 21 provide her with a refund. SAC ¶ 13. 22 Section 13 of the COC, “Refunds,” states in relevant part that ANA will provide a refund 23 when a passenger is prevented from using a ticket because “ANA cancels a flight, [or] fails to 24 operate a flight reasonably according to the schedule.” COC § 13(A), (C). “ANA will make a 25 refund to the person named in a Ticket or, to the person who purchased the Ticket upon 26 presentation to ANA of satisfactory evidence to prove that he/she is entitled by these Conditions 27 of Carriage to such refund.” COC § 13(B). The Court previously found that it “appears from the 1 entitlement to a refund, is a condition precedent to obtaining a refund.” Prior Order at 22. The 2 Court concluded in the last round of motion practice that the FAC alleged neither satisfaction of 3 the condition precedent nor excuse for nonperformance. See id. The Court granted Bugarin leave 4 to amend to add facts showing either that § 13(B) is not a condition precedent or that Bugarin’s 5 nonperformance of the condition precedent is excused. 6 In the SAC, Bugarin seeks to show that her nonperformance of the condition precedent is 7 excused. Confusingly, she alleges that ASAP’s $200 processing fee for obtaining a refund “is 8 direct frustration of the condition precedent” in ANA’s COC. SAC ¶ 18. She also alleges that 9 ANA “specifically prevented Plaintiff and Class members from fulfilling the condition precedent 10 by leaving customers seeking a refund on hold for long periods of time, dropping calls when they 11 did get through, and otherwise creating bottleneck to avoid processing refunds as required” under 12 the COC. SAC ¶ 17. Bugarin alleges that she “made more than one call” to ANA but had 13 difficulty understanding how to select the proper option to reach a live representative because 14 ANA’s recorded message was partially in Japanese. SAC ¶ 19. Once Bugarin selected the proper 15 option, she allegedly was placed on hold for 30-45 minutes, after which her calls were dropped 16 before she could speak to an ANA representative. SAC ¶ 20. Bugarin asserts that “Defendant’s 17 frustration of the condition precedent was part of its policy to avoid issuing a refund to Plaintiff 18 and Class members.” SAC ¶ 23. 19 Bugarin, a citizen and resident of California, sues ANA for breach of the COC on behalf of 20 herself and the following putative nationwide class: “All persons in the United States who 21 purchased tickets for travel on an All Nippon flight scheduled to operate to, from, or within the 22 United States whose flights were cancelled or were subject to a significant schedule change and 23 not refunded.” SAC ¶ 30. She also seeks to represent a subclass of persons who purchased 24 tickets in California. SAC ¶ 31. 25 II. MOTION TO COMPEL ARBITRATION 26 ANA moves to compel arbitration of the SAC. While ANA’s COC do not include an 27 arbitration provision, ANA asserts that it may enforce an arbitration provision contained in 1 A. Legal Standard 2 The Federal Arbitration Act (“FAA”) applies to arbitration agreements affecting interstate 3 commerce. 9 U.S.C. §§ 1 et seq. When it applies, the FAA preempts state law rules that conflict 4 with its provisions, as well as “state-law rules that stand as an obstacle to the accomplishment of 5 the FAA’s objectives.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341-43 (2011). In 6 deciding whether to compel arbitration, a court generally must determine two issues: (1) whether 7 there is an agreement to arbitrate, and (2) whether the agreement covers the dispute. See Brennan 8 v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). The party seeking to compel arbitration bears 9 the burden of proving the existence of an agreement to arbitrate by a preponderance of the 10 evidence. See Norcia v. Samsung Telecommunications Am., LLC, 845 F.3d 1279, 1283 (9th Cir. 11 2017). 12 “The right to compel arbitration stems from a contractual right.” Britton v. Co-op Banking 13 Grp., 4 F.3d 742, 744 (9th Cir. 1993). “That contractual right may not be invoked by one who is 14 not a party to the agreement and does not otherwise possess the right to compel arbitration.” Id. 15 A nonparty may “otherwise possess the right to compel arbitration” when the nonparty is a third- 16 party beneficiary of the contract, a successor in interest to the contract, or an agent of a signatory. 17 Id. at 745-47. 18 Under certain circumstances, a nonparty may compel arbitration under the doctrine of 19 equitable estoppel. See Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1128 (9th Cir. 2013). 20 “Where a nonsignatory seeks to enforce an arbitration clause, the doctrine of equitable estoppel 21 applies in two circumstances: (1) when a signatory must rely on the terms of the written agreement 22 in asserting its claims against the nonsignatory or the claims are intimately founded in and 23 intertwined with the underlying contract, and (2) when the signatory alleges substantially 24 interdependent and concerted misconduct by the nonsignatory and another signatory and the 25 allegations of interdependent misconduct [are] founded in or intimately connected with the 26 obligations of the underlying agreement.” Id. at 1128-29 (internal quotation marks and citations 27 omitted). 1 B. Discussion 2 ANA argues that the doctrine of equitable estoppel applies here because Bugarin relies on 3 ASAP’s conduct in asserting her contract claim against ANA, and Bugarin’s contract claim 4 against ANA is intertwined with her agreement with ASAP. In opposition, Bugarin contends that 5 ANA has not established that she entered into an arbitration agreement with ASAP. She also 6 contends that even if she did enter into an arbitration agreement with ASAP, ANA cannot enforce 7 that agreement for four reasons. First, Bugarin argues that ANA waived its right to move to 8 compel arbitration. Second, she contends that it would be inappropriate to allow ANA to compel 9 arbitration based on a provision in ASAP’s terms and conditions, since federal regulations bar 10 ANA from including an arbitration provision in its COC. Third, she asserts that ANA is not a 11 third-party beneficiary to the arbitration agreement. And fourth, she argues that ANA cannot 12 invoke ASAP’s arbitration provision under the doctrine of equitable estoppel. 13 1. ANA has Shown the Existence of an Arbitration Agreement 14 As the party seeking to compel arbitration, ANA has the burden of proving the existence of 15 an arbitration agreement by a preponderance of the evidence. See Norcia, 845 F.3d at 1283. ANA 16 submits screenshots of ASAP’s website showing that users must check a box agreeing to ASAP’s 17 terms and conditions, including an arbitration provision, in order to purchase airline tickets. See 18 Lau Decl. Exhs. 3-4, ECF 35-1; Vazan Decl. Exhs. 3-4, ECF 35-2. Bugarin points out that the 19 screenshots submitted by ANA are from 2021, and she argues that ANA has not established that 20 the screenshots depict what she saw when she booked her flights in 2019. She cites Maree v. 21 Deutsche Lufthansa AG, No. SACV 20-885-MWF (MRWx), 2020 WL 6018806, at *3 (C.D. Cal. 22 Oct. 7, 2020), for the proposition that “it would be improper to rule on the existence of an 23 arbitration agreement without first determining, as a factual matter, what the website looked like 24 on the relevant date.” 25 Bugarin’s reliance on Maree is misplaced. In that case, the plaintiff purchased tickets on 26 the defendant airline, Lufthansa, through the website of third party Expedia. Lufthansa sought to 27 compel arbitration of the plaintiff’s claims pursuant to an arbitration provision contained on the 1 purchasing airline tickets on Expedia, the screenshot was undated and it was unclear whether it 2 was an accurate representation of what the plaintiff saw when she bought her flights. See Maree, 3 2020 WL 6018806, at *2-3. At the hearing, Lufthansa represented that it was in the process of 4 obtaining a declaration from Expedia to confirm that the checkout flow depicted in the screenshot 5 was the same as at the time the plaintiff bough her tickets. See id. at *2. The district court 6 deferred consideration of the defendant’s motion to compel arbitration pending the defendant’s 7 submission of “information that verifies the website’s design and content as it appeared in January 8 2020,” when the plaintiff booked her flight. Maree, 2020 WL 6018806, at *3. 9 In the present case, ANA has submitted information verifying the design and content of 10 ASAP’s website as it appeared in November 2019, when Bugarin booked her flights. ANA 11 submits the declaration of Peter Vazan, a representative of International Travel Network, LLC, 12 which operates the ASAP website. See Vazan Decl. ¶¶ 2-3, ECF 35-2. Mr. Vazan describes the 13 process by which an individual can use the ASAP website to purchase an airline ticket. See id. ¶¶ 14 7-8. “[U]sers must check a box that indicates that he or she has read, understood and accepted 15 specific terms and policies including present Terms and Conditions.” Id. ¶ 7. “Website users can 16 click through an embedded hyperlink, which is displayed bold, underlined and in blue, to fully 17 review the Terms and Conditions.” Id. “Users cannot proceed with payment without 18 affirmatively checking this box.” Id. Mr. Vazan states that the screen flow on the ASAP website, 19 the booking screen, and the terms and conditions have not changed in any material respect since 20 Bugarin purchased her airline tickets in November 2019. See id. ¶¶ 7-10. 21 One of ANA’s attorneys, Grace Lau, submits a declaration stating that in February 2021, 22 she used the ASAP website to purchase an airline ticket from Los Angeles, California to Tokyo, 23 Japan, and that she had to agree to ASAP’s terms and conditions as part of the purchase process. 24 See Lau Decl. ¶ 7, ECF 35-1. Those terms and conditions include an arbitration provision stating 25 as follows: “The exclusive means of resolving any dispute or claim arising out of or Relating to 26 this Agreement) including any alleged breach thereof), the Service, or the Website shall be 27 BINDING ARBITRATION administered by the American Arbitration Association.” Id. ¶¶ 7-8 & 1 This evidence is sufficient to show by a preponderance of the evidence that Bugarin 2 entered into an arbitration agreement with ASAP when she purchased her flights. 3 2. ANA Did Not Waive the Right to Move to Compel Arbitration 4 Bugarin contends that even if she did enter into an arbitration agreement with ASAP, ANA 5 has waived its right to move to compel arbitration by waiting almost a year after commencement 6 of the action to file its motion. ANA argues that its motion to compel arbitration is based on 7 allegations that appeared for the first time in the SAC, and that its motion was filed only a month 8 after the SAC. 9 “The right to arbitration, like other contractual rights, can be waived.” Martin v. Yasuda, 10 829 F.3d 1118, 1124 (9th Cir. 2016). “Because waiver of the right to arbitration is disfavored, any 11 party arguing waiver of arbitration bears a heavy burden of proof.” Id. (internal quotation marks 12 and citation omitted). “As such, [a] party seeking to prove waiver of a right to arbitration must 13 demonstrate: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with 14 that existing right; and (3) prejudice to the party opposing arbitration resulting from such 15 inconsistent acts.” Id. (internal quotation marks and citation omitted). 16 ANA’s motion to compel arbitration under the doctrine of equitable estoppel is based on 17 new allegations in the SAC. Specifically, in the SAC Bugarin alleges for the first time that she 18 sought a refund from ASAP, that ASAP informed her there would be a $200 charge per ticket for 19 a refund, and that the $200 charge “is a direct frustration of the condition precedent” in ANA’s 20 COC. SAC ¶ 18. Based on these allegations, ANA contends it may compel arbitration under the 21 doctrine of equitable estoppel, because Bugarin relies on ASAP’s conduct in asserting her contract 22 claim against ANA, and Bugarin’s contract claim against ANA is intertwined with her agreement 23 with ASAP. The SAC was filed on February 5, 2021, and ANA filed the present motion to 24 compel arbitration on March 5, 2021. Under these circumstances, Bugarin cannot meet her heavy 25 burden of proof to show waiver of ANA’s right to move to compel arbitration. 26 3. Effect of 14 C.F.R. § 253.10 27 Bugarin asserts that federal regulations bar ANA from including an arbitration provision in 1 to enforce ASAP’s arbitration provision. In particular, Bugarin relies on 14 C.F.R. § 253.10, 2 which reads as follows:

3 No carrier may impose any contract of carriage provision containing a choice-of- forum clause that attempts to preclude a passenger, or a person who purchases a 4 ticket for air transportation on behalf of a passenger, from bringing a claim against a carrier in any court of competent jurisdiction, including a court within the 5 jurisdiction of that passenger’s residence in the United States (provided that the carrier does business within that jurisdiction). 6 7 14 C.F.R. § 253.10. ANA argues that § 253.10 speaks only to forum selection provisions, not 8 arbitration provisions, and that in any event § 253.10 applies only to claims involving domestic 9 flights and not claims involving international flights such as the one at issue in this case. 10 The parties cite competing district court cases in support of their positions. Bugarin relies 11 on Rudolph v. United Airlines Holdings, Inc., 519 F. Supp. 3d 438 (N.D. Ill. 2021), a putative 12 class action against United Airlines for failure to refund travel fares for flights cancelled due to the 13 COVID-19 pandemic. United moved to compel arbitration pursuant to an arbitration provision 14 contained in the terms of use governing the website of third-party Expedia, which one of the 15 named plaintiffs, Hansen, had used to purchase his airfare. Hansen used Expedia’s website to 16 purchase roundtrip tickets on United from Vancouver, British Columbia, to Liberia, Costa Rica, 17 with connecting flights via Houston, Texas. Id. at 444. Expedia’s arbitration provision stated that 18 “[a]ny and all claims will be resolved by binding arbitration” with the exception of qualifying 19 claims that could be resolved in small claims court. Id. at 445. The provision contained the 20 following language: “This includes any Claims you assert against us, our subsidiaries, travel 21 suppliers or any companies offering products or services through us (which are beneficiaries of 22 this arbitration agreement).” Id. 23 The district court found that Expedia’s arbitration provision was valid and enforceable 24 with respect to disputes between Hansen and Expeida.com. See Rudolph, 519 F. Supp. 3d at 445. 25 The court determined that the provision could not be enforced by United, however, in light of 26 applicable Department of Transportation (“DOT”) regulations. See id. at 446-447. The district 27 court found that 14 C.F.R. § 253.10, set forth above, prohibited United from including an 1 nonetheless could rely on Expedia’s arbitration provision “because Section 253.10’s plain 2 language only prohibits restrictions by air carriers in their own contracts of carriage, not travel 3 booking websites like Expedia in their agreements with customers.” Id. at 447. The district court 4 rejected United’s argument, holding that “United should not be permitted to do indirectly what 5 federal regulations prohibit it from doing directly, particularly given the regulation’s purpose to 6 provide protections to consumers.” Id. 7 ANA relies Capua v. Air Europa Lineas Aereas S.A. Inc., No. 20-CV-61438-RAR, 2021 8 WL 965500 (S.D. Fla. Mar. 15, 2021), in which the district court reached the opposite result on 9 similar facts. Capua was a putative class action against Air Europa for failure to refund travel 10 fares for flights cancelled due to the COVID-19 pandemic. The named plaintiff, Capua, used 11 Expedia’s website to purchase round trip tickets from Miami, Florida to Porto, Portugal on Air 12 Europa. See id. at *1. Expedia’s terms of use contained the same arbitration provision addressed 13 by Rudolph and discussed above. See id. The district court held that Capua could enforce the 14 arbitration provision as a third-party beneficiary, finding that Air Europa clearly qualified as one 15 of the “travel suppliers or any companies offering products or services through us” that were 16 intended “beneficiaries of this arbitration agreement.” Id. at *6. 17 The Capua court found that § 253.10 did not prohibit the Air Europa from enforcing 18 Expedia’s arbitration provision. See Capua, 2021 WL 965500, at *8. The district court found that 19 “[b]y its own terms, section 253.10 prohibits Air Europa from including an arbitration clause in its 20 own contract of carriage.” Id. However, the court concluded that “nothing in section 253.10 21 prohibits Air Europa from relying on an arbitration clause found in Expedia’s TOU – an entirely 22 separate and distinct contract.” Id. The Capua court also determined that § 253.10 applies only to 23 contracts of carriage for domestic flights, relying on DOT commentary in the Federal Register. 24 See id. Because Capua purchased tickets for an international flight, the district court concluded 25 that § 253.10 did not apply. See id. The Capua court acknowledged the Rudolph decision, but 26 simply disagreed as to the applicability of § 253.10. See id. The Capua court stated that it was 27 “troubled by the suggestion that a little-known DOT regulation could take precedence over the 1 citation omitted). 2 Before discussing the differences between the Rudolph and Capua decisions, this Court 3 notes that both courts determined that § 253.10 prohibits airlines from including arbitration 4 provisions in their own conditions of carriage. See Capua, 2021 WL 965500, at *8 (“By its own 5 terms, section 253.10 prohibits Air Europa from including an arbitration clause in its own contract 6 of carriage.”); Rudolph, 519 F. Supp. 3d at 446-47 (“United concedes that this regulation prohibits 7 an airline from including an arbitration clause in its own Contract of Carriage.”). This Court 8 agrees with that determination. While § 253.10 prohibits a carrier from including in its COC a 9 “choice-of-forum clause” that would preclude suit against the carrier “in any court of competent 10 jurisdiction,” an arbitration provision appears to fall within this prohibition, as it would preclude 11 suit against the carrier in any court. 14 C.F.R. § 253.10. Accordingly, this Court finds 12 unpersuasive ANA’s argument that § 253.10 does not apply to arbitration provisions. 13 Turning to the conflicting holdings of Rudolph and Capua, this Court finds Rudolph to be 14 more persuasive. In particular, this Court agrees with Rudolph that a carrier should not be allowed 15 to avoid the restriction imposed by § 253.10 by seeking “to do indirectly what federal regulations 16 prohibit it from doing directly.” Rudolph, 519 F. Supp. 3d at 447. This Court declines to find that 17 § 253.10 applies only to domestic flights, as did the Capua court, based on DOT commentary in 18 the Federal Register. In this Court’s view, there is no ambiguity in the language of § 253.10 that 19 would give rise to a need to consider commentary to aid interpretation. Section § 253.10 states 20 that “[n]o carrier” may include a certain type of clause in its conditions of carriage. Nothing in 21 this language suggests that “[n]o carrier” means “[n]o carrier of domestic flights.” “[W]here, as 22 here, the statute’s language is plain, the sole function of the courts is to enforce it according to its 23 terms.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (quotation marks 24 and citation omitted). Based on Rudolph, this Court finds that ANA may not enforce ASAP’s 25 arbitration provision. 26 4. Third-Party Beneficiary and Equitable Estoppel 27 Even if it were to conclude that § 253.10 does not bar ANA’s enforcement of ASAP’s 1 ANA contends that it may enforce ASAP’s arbitration provision under the doctrine of equitable 2 estoppel. ANA does not argue that it has standing to enforce the arbitration provision as a third- 3 party beneficiary. The Court therefore does not reach Bugarin’s argument that ANA cannot 4 proceed on a third-party beneficiary theory. 5 As discussed above, a non-party to an arbitration agreement may enforce the agreement “in 6 two circumstances: (1) when a signatory must rely on the terms of the written agreement in 7 asserting its claims against the nonsignatory or the claims are intimately founded in and 8 intertwined with the underlying contract, and (2) when the signatory alleges substantially 9 interdependent and concerted misconduct by the nonsignatory and another signatory and the 10 allegations of interdependent misconduct [are] founded in or intimately connected with the 11 obligations of the underlying agreement.” Kramer, 705 F.3d at 1128-29 (internal quotation marks 12 and citations omitted). ANA seeks to enforce the ASAP arbitration agreement under the first of 13 these circumstances. ANA relies heavily on paragraph 18 of the SAC, alleging that ASAP’s $200 14 processing fee for obtaining a refund “is direct frustration of the condition precedent” in ANA’s 15 COC. SAC ¶ 18. ANA argues that because Bugarin is relying on her relationship with ASAP to 16 show an essential element of her contract claim, ANA should be permitted to enforce ASAP’s 17 arbitration provision. At the hearing, Bugarin’s counsel clarified that paragraph 18 was drafted in 18 error, and that Bugarin is not asserting frustration of the condition precedent based on ASAP’s 19 conduct. Bugarin’s counsel represented that the asserted frustration of the condition precedent is 20 based solely on ANA’s conduct. Based on that clarification, the Court finds that paragraph 18 of 21 the SAC does not provide a basis for applying the doctrine of equitable estoppel. 22 At the hearing, counsel for ANA argued that although there are two separate contracts at 23 issue, one between Bugarin and ASAP and one between Bugarin and ANA, the two contracts are 24 intertwined because they apply to the same carriage. ANA’s counsel cited Ide v. Brit. Airways 25 PLC, No. 20-CV-3542 (JMF), 2021 WL 1164307 (S.D.N.Y. Mar. 26, 2021), in support of that 26 argument. However, in Ide it was undisputed that the carrier had standing to enforce an arbitration 27 agreement contained in Expedia’s terms of service with respect to a passenger who purchased 1 and it is not even clear from the decision whether equitable estoppel was the basis for the carrier’s 2 standing to enforce Expedia’s arbitration provision rather than third-party beneficiary status. See 3 id. at *3. 4 Bugarin relies on Herrera v. Cathay Pac. Airways Ltd., No. 20-CV-03019-JCS, 2021 WL 5 2186214 (N.D. Cal. May 28, 2021), a putative class action in which the plaintiffs claimed that 6 Cathay Pacific breached its conditions of carriage by failing to provide refunds for flights it 7 cancelled due to the COVID-19 pandemic. Like Bugarin in the present case, the Herrera 8 plaintiffs purchased their airline tickets through ASAP. Id. at *1. Cathay Pacific moved to 9 compel arbitration, seeking to enforce ASAP’s arbitration provision under the doctrine of 10 equitable estoppel. See id. at *4-5. The court denied the motion, concluding that the plaintiffs’ 11 “breach of contract claim against Cathay Pacific is not based on any obligation found in the 12 [ASAP] Terms and Conditions and therefore, the doctrine of equitable estoppel does not apply.” 13 Id. at *5. The Herrera court explained that the plaintiffs’ contract claim was based on Cathay 14 Pacific’s obligations under its own conditions of carriage, and not on any obligation contained in 15 ASAP’s terms and conditions. See id. The court found that for those and other reasons, “fairness 16 does not require that the Herreras’ breach of contract claim against Cathay Pacific must be 17 arbitrated.” Id. 18 This Court likewise concludes that because Bugarin’s contract claim against ANA is based 19 solely on ANA’s own COC, and not on any obligation found in ASAP’s terms and conditions, 20 equity does not require that the claim be subject to ASAP’s arbitration provision. 21 ANA’s motion to compel arbitration is DENIED. 22 III. MOTION TO DISMISS 23 In the event that the Court denies its motion to compel arbitration, ANA moves to dismiss 24 the SAC under Rule 12(b)(6) for failure to state a claim. 25 A. Legal Standard 26 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 27 claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force 1 While a complaint need not contain detailed factual allegations, it “must contain sufficient factual 2 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 3 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 4 claim is facially plausible when it “allows the court to draw the reasonable inference that the 5 defendant is liable for the misconduct alleged.” Id. 6 When evaluating a Rule 12(b)(6) motion, the district court must consider the allegations of 7 the complaint, documents incorporated into the complaint by reference, and matters which are 8 subject to judicial notice. Louisiana Mun. Police Employees’ Ret. Sys. v. Wynn, 829 F.3d 1048, 9 1063 (9th Cir. 2016) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 10 (2007)). 11 B. Discussion 12 In its prior order, the Court found that a request for refund, supported by evidence 13 sufficient to prove entitlement to a refund, is a condition precedent to obtaining a refund under 14 ANA’s COC. See Prior Order at 22. The FAC did not allege facts showing satisfaction of the 15 condition precedent or excuse for nonperformance. See id. The Court granted Bugarin leave to 16 amend to add facts showing either that § 13(B) is not a condition precedent or that Bugarin’s 17 nonperformance of the condition precedent is excused. See id. 18 In her SAC, Bugarin asserts that ANA prevented her from fulfilling the condition 19 precedent to obtaining a refund under ANA’s COC. See SAC ¶ 17. However, many of the facts 20 supporting this assertion are not contained in the SAC itself, but rather in Bugarin’s declaration 21 that is attached to the SAC. See Bugarin Decl., Exh. B to SAC. For example, Bugarin states in 22 her declaration that she “called All Nippon’s customer service number (800-235-9262) up to thirty 23 times over the span of several weeks in April 2020” in an attempt to request a refund. Bugarin 24 Decl. ¶ 5. These details are not alleged in the SAC, which states only that Bugarin “made more 25 than one call” to ANA. SAC ¶ 19. 26 While a “written instrument” attached as an exhibit to a complaint may be considered part 27 of the complaint for all purposes under Federal Rule of Civil Procedure 10(c), documents that 1 or duties or giving formal expression to a legal act or agreement, such as a deed, will, bond, lease, 2 insurance policy or security agreement.” DeMarco v. DepoTech Corp., 149 F. Supp. 2d 1212, 3 1220 (S.D. Cal. 2001). “In contrast, witness affidavits and other exhibits containing largely 4 evidentiary material typically do not fall within Rule 10(c)’s category of written instruments.” 5 Montgomery v. Buege, No. CIV. 08-385 WBS KJM, 2009 WL 1034518, at *3 (E.D. Cal. Apr. 16, 6 2009) (internal quotation marks and citation omitted). The exception is when an affidavit forms 7 the basis of the complaint, as in Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994), where the plaintiff 8 claimed that an agent’s warrant affidavit contained deliberately false statements, rendering the 9 resulting search of his premises unlawful under the Fourth Amendment. See United States v. 10 Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (citing Branch as an example of circumstances in which 11 an affidavit “forms the basis of the complaint” and thus properly may be attached as a pleading 12 exhibit). 13 Here, Bugarin’s declaration does not form the basis of her contract claim; “it is merely a 14 piece of evidentiary matter that does not exist independently of the complaint.” DeMarco, 149 F. 15 Supp. 2d at 1220. Accordingly, the declaration cannot be considered as part of the SAC when 16 evaluating ANA’s motion to dismiss. See Bowler v. Wells Fargo Bank, N.A., No. CV-19-05320- 17 PHX-NVW, 2020 WL 4260505, at *10-11 (D. Ariz. July 24, 2020) (plaintiffs’ declarations 18 attached to their second amended complaint could not be considered in evaluating a Rule 12(b)(6) 19 motion to dismiss). The facts alleged in the SAC itself are insufficient to show excuse for 20 nonperformance of the condition precedent. The Court therefore has no choice but to grant the 21 motion to dismiss. Viewing Bugarin’s declaration as a proffer of facts that could be alleged, 22 however, it appears that Bugarin could amend to cure this defect. 23 At the hearing, counsel for ANA pointed out that each round of pleading is costing ANA a 24 great deal of money. Counsel argued persuasively that allowing further leave to amend, 25 particularly to cure the very odd decision to include critical facts in a declaration attached to the 26 SAC rather than in the SAC itself, is reaching the bounds of judicial economy and fairness. The 27 Court agrees, but based on this record it will give Bugarin one final opportunity to amend her 1 ANA’s motion to dismiss the SAC therefore is GRANTED WITH LEAVE TO AMEND. 2 IV. ORDER 3 (1) ANA’s motion to compel arbitration is DENIED. 4 (2) ANA’s motion to dismiss the SAC is GRANTED WITH LEAVE TO AMEND. 5 Any amended pleading shall be filed by November 16, 2021. Leave to amend is 6 limited to the deficiencies noted herein. No additional claims or parties may be 7 added without leave of the Court. 8 (3) This order terminates ECF 35. 9 10 Dated: October 26, 2021 ll nich) BETH LABSON FREEMAN United States District Judge

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