FILED
NOT FOR PUBLICATION
JAN 19 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOAI DANG, on behalf of himself and all No. 15-16768
others similarly situated,
D.C. No. 5:14-cv-00530-LHK
Plaintiff-Appellant,
v. MEMORANDUM*
SAMSUNG ELECTRONICS CO., LTD.;
SAMSUNG ELECTRONICS AMERICA,
INC.; SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted October 17, 2016
San Francisco, California
Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.
Hoai Dang appeals the district court’s order granting the motion to compel
arbitration filed by Samsung Telecommunications America, LLC, Samsung
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Electronics America, Inc., and Samsung Electronics Co., Ltd. (collectively,
“Samsung”). We have subject matter jurisdiction under 28 U.S.C. § 1291.
The district court erred in granting Samsung’s motion to compel arbitration
because Dang and Samsung did not form an agreement to arbitrate under
California law. See AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.
643, 648 (1986). Dang did not expressly agree to the arbitration provision
contained in the “Standard Limited Warranty,” which was included in the brochure
entitled “Important Information for the Samsung SPH-L710” contained in the
Galaxy SIII box. Nor did Dang accept Samsung’s offer by failing to opt out of the
arbitration provision because an offeree’s silence does not constitute acceptance
under California law, Golden Eagle Ins. Co. v. Foremost Ins. Co., 20 Cal. App. 4th
1372, 1385 (1993), and the inclusion of an arbitration provision in a product box is
not an exception to this general rule, Norcia v. Samsung Telecomms. Am., No. 14-
16994, — F.3d — (9th Cir. 2017). Moreover, even if Dang could be bound in
certain circumstances by the failure to opt out of terms included in a product box
under California law, no contract was formed in this case because Samsung did not
provide Dang with adequate notice that the information brochure contained an
offer to enter into a bilateral contract. See id.; see also Windsor Mills, Inc. v.
Collins & Aikman Corp., 25 Cal. App. 3d 987, 993 (1972). Although the back of
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the Galaxy SIII box gave Dang notice that the box contained a “warranty
disclaimer associated with SAFE,” a seller’s offer of a warranty does not create a
binding bilateral contract with a buyer. Norcia, No. 14-16994, — F.3d at —.
Dang did not concede that he formed an agreement to arbitrate with
Samsung in his operative complaint. Dang’s “amended complaint supersedes the
original, the latter being treated thereafter as non-existent,” Loux v. Rhay, 375 F.2d
55, 57 (9th Cir. 1967), overruled on other grounds by Lacey v. Maricopa Cty., 693
F.3d 896, 928 (9th Cir. 2012) (en banc), and Dang argued in his opposition to
Samsung’s motion to compel that the parties failed to form an agreement to
arbitrate.
REVERSED AND REMANDED
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