Matchmaker Liability Could Exceed Triple Damages Under California Law
Dating services in California have become more popular over the years and they have grown with the internet. The world wide web has made it easier for out-of-state dating services to conduct business in California. However, this industry has been regulated in California since 1989. And the regulation was created to protect the consumer of the dating service business. But not much has been much written about these consumer protections. And the rather obscure and unused statutes have created a dearth of case law on the subject.
In 2008, I won an appeal that was the first California Court of Appeals decision to substantively analyze the dating services statutes, Duffens v. Valenti International (2008) 161 Cal.App.4th 434. Although the dating service statutes were amended in 2018, the rules of law set down in Duffens are still controlling law on the subject. The case has been cited by 56 state and federal courts across the state of California and numerous practice guides for law students and attorneys including the American Law Reports (A.L.R.), California Juris Prudence (Cal. Jur.), Cardozo Law Review, Corpus Juris Secundum (CJS), The Rutter Group, California Practice Guide, Professor Witkin’s California Procedure, California Contracts, and most recently in the 2022 Witkin’s California Summary of Sales, Dating Services.
A. The Heart of the Statutes and Avoiding the Arbitration Clause
The dating service laws are found in the California Civil Code at sections 1694 to 1694.4. The heart of most dating service disputes involve sections 1694.4(b) and (c). These sections state,
Any contract for dating services entered into under willful and fraudulent or misleading information or advertisements of the seller is void and unenforceable.” (Civ. Code § 1694.4(b)).
Any buyer injured by a violation of this chapter may bring an action for the recovery of damages in a court of competent jurisdiction. Judgment may be entered for three times the amount at which the actual damages are assessed. Reasonable attorney fees may be awarded to the prevailing party. (Civ. Code § 1694.4(c)).
However, one of the most important things about the dating services statutes is not squarely addressed in the statutes. That is the dreaded arbitration clause. Many contracts in general have arbitration clauses and dating service contracts are no exception. An arbitration clause usually states that any dispute cannot be brought in court. It must be submitted to a private judge called an arbitrator (usually a retired judge or a lawyer specially trained in arbitrations). Instead of each side preparing for a trial, they prepare for an arbitration which is an informal trial usually held in an arbitrator’s conference room (with no jury). The pros and cons of arbitration are beyond the scope of this post. Suffice it to say, plaintiffs generally disfavor arbitration and lawyers that defend dating services prefer them.
If the dating service contract contains an arbitration clause, it can be attacked by showing the contract was entered into under willful and fraudulent or misleading information or advertisements of the seller.” (Civ. Code § 1694.4(b)). If so, the contract is “null and void” and so is the arbitration clause. However, that is often an uphill battle. But the statutes also have many technical requirements for the dating service contracts. And a violation of any of the technical requirements also makes the contract null and void. (Civ. Code § 1694.4(b)). So, let’s take a look at these technical ways to void the arbitration provision by finding a technical violation of the statutes.
B. Dating Service Contract Defined
The first inquiry is whether you have a dating service contract. The dating service laws are found in the California Civil Code at sections 1694 to 1694.4. The first important thing to note about the dating services laws is the definition of a “dating service contract.” This is important because the laws only apply to dating service contracts. Fortunately, the definition is quite broad. A dating service contract is defined as “any contract with any organization that offers dating, matrimonial, or social referral services by any of the following means:
(1) An exchange of names, telephone numbers, addresses, and statistics.
(2) A photograph or video selection process.
(3) Personal introductions provided by the organization at its place of business.
(4) A social environment provided by the organization intended primarily as an alternative to other singles’ bars or club-type environments.”
(Cal. Civ. Code § 1694(a)).
If the organization offers any of these services, your contract is governed by the dating service statutes. This is true even if the dating service contract specifically states it is not a dating service. The contract language cannot avoid the statutory definition of a dating service contract. Duffens, supra, 161 Cal.App.4th at 315. In addition, many high-end organizations call themselves a “matchmaking” service or they claim to provide “consulting agreements.” Again, it does not matter what they call themselves if their services fall into one of the four categories set forth in Civil Codes section 1694.
In addition to this already broad definition of dating service, the 2017 amendment made the definition even broader. In an effort to keep up with online dating services, the amendment added a definition for “online dating service.” An online dating service is “any person or organization engaged in the business of offering dating, matrimonial, or social referral services online, where the services are offered primarily online, such as by means of an internet website or a mobile application. (Cal. Civ. Code § 1694(b)).
C. A Dating Service Contract Shall be in Writing
If the organization provides services set forth in section 1694(a) or (b), the “contract shall be in writing.” (Cal. Civ. Code § 1694.2). Therefore, it is not defense for the organization to say that the contract was based on an oral understanding. If there is no contact, the organization is in violation of the law.
D. Right to Cancel Required in Contract
Every dating service contract shall contain on its face, and in close proximity to the space reserved for the signature of the buyer, a conspicuous statement in a size equal to at least 10–point boldface type, as follows:
You, the buyer, may cancel this agreement, without any penalty or obligation, at any time prior to midnight of the original contract seller’s third business day following the date of this contract, excluding Sundays and holidays. To cancel this agreement, mail or deliver a signed and dated notice, or send a telegram which states that you, the buyer, are canceling this agreement, or words of similar effect. This notice shall be sent to:
(Name of the business that sold you the contract)
(Address of the business that sold you the contract)
In an online dating service contract, this notice must be in a clear and conspicuous manner in a stand-alone first paragraph of the contract. (Civ. Code § 1694.2(a)(b)) (the statutes also require specific language if money paid to the dating service is financed. But that is beyond the scope of this post).
E. You Must be Given a Copy of the Contract
A copy of the dating service contract shall be provided to the buyer at the time he or she signs the contract. A copy of an online dating service contract does not have to be given to the buyer if (1) the contract is available through a direct link that is provided in a clear and conspicuous manner on the internet website page where the buyer provides consent to the agreement, (2) upon request by the buyer, the online dating service provides a PDF format or retainable digital copy of the contract. (Civ. Code § 1694.2(a)).
F. Notice of Cancellation
Cancellation need not take any particular form. It is effective if it indicates the intention of the buyer not to be bound by the dating service contract. (Civ. Code § 1694.1(d)).
Cancellation of a dating service contract occurs when the buyer gives written notice of cancellation by (1) mail, (2) telegram, or (3) delivery to the seller at the address specified in the agreement or offer. Cancellation of an online dating service contract occurs when the buyer gives written notice of cancellation by email to an email address provided by the seller. Additional electronic means of cancellation may be provided by the agreement or offer. (Civ. Code § 1694.2(a)).
The dating service contract shall contain on the first page, in a type size no smaller than that generally used in the body of the document, the name and address of the dating service operator to which the notice of cancellation is to be mailed, and the date the buyer signed the contract. (Civ. Code § 1694.2(c)(1)) (notice given by mail is effective when deposited in the mail, not when received). In the case of an online dating service contract, if the name of the dating service operator and the email address that can be used for cancellation appears in the first paragraph of the contract, in a type size no smaller than that generally used in the body of the document, the other requirements of section 1694.2(c)(1) shall not apply. (Civ. Code § 1694.2(c)(2)).
G. Refund After Cancellation
The dating service organization has 10 days from receipt of the notice of cancellation to refund all moneys paid to the organization. (Civ. Code § 1694.1(e)).
There are not many lawyers with experience in this area of law. If you have an issue with a dating service, it is important to (1) keep a copy of your contract, (2) make copies of all representations made to you about the service, including web pages, (3) and consult with a lawyer experienced in this area of law.
Below, you will find links to the Duffens v. Valenti opinion from the Court of Appeals. I have also added the current dating service statutes with the 2018 amendments in highlighted text. When you click on them, they will open in a new window which allows you to print and/or download them.