NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMSUNG ELECTRONICS AMERICA, No. 18-16094
INC.; SAMSUNG ELECTRONICS
COMPANY, LTD., D.C. No.
1:17-cv-01462-AWI-SAB
Plaintiffs-Appellants,
v. MEMORANDUM*
DANIEL RAMIREZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted August 29, 2019
Seattle, Washington
Before: McKEOWN and BYBEE, Circuit Judges, and GAITAN,** District Judge.
Samsung Electronics America, Inc., and Samsung Electronics Company,
Ltd. (collectively, “Samsung”), appeal the district court’s denial of their motion to
compel arbitration of Daniel Ramirez’s claims stemming from severe burns
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
allegedly caused by his Samsung phone. Because the parties are familiar with the
facts, we do not recite them here. We have jurisdiction under 28 U.S.C. § 1291,
and because the factual findings are undisputed, we review de novo the district
court’s ruling. Davis v. Nordstrom, Inc., 755 F.3d 1089, 1091 (9th Cir. 2014). We
affirm.
Under California law, silence or inaction generally does not constitute
acceptance of a contract. See Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d
1279, 1287 (9th Cir. 2017). An offeree may demonstrate acceptance through
conduct, but not where, as here, the contractual provisions are “inconspicuous” and
“contained in a document whose contractual nature is not obvious.” Windsor
Mills, Inc. v. Collins & Aikman Corp., 25 Cal. App. 3d 987, 993 (1972). We
conclude that the inaptly titled booklet containing the terms and conditions and the
smartphone packaging’s vague reference to terms and conditions are insufficient to
put a reasonable consumer (or a reasonably prudent smartphone user) on notice of
the arbitration provision that Samsung seeks to enforce. See Norcia, 845 F.3d
at 1284–86.
Norcia also forecloses Samsung’s arguments that California courts have
adopted the “in-the box” theory of assent and that the “in-the-box” theory would
apply in these circumstances. Id. at 1287–90 (citing Hill v. Gateway 2000, Inc.,
105 F.3d 1147, 1148 (7th Cir. 1997)). Two non-precedential decisions from
2
California’s intermediate court of appeals, both of which address Hill only in
passing, do not undermine this conclusion. See Schuldner v. ITC Fin. Licenses,
Inc., No. A150522, 2018 WL 416839, at *7 (Cal. Ct. App. Jan. 16, 2018)
(unpublished); Chau v. Pre-Paid Legal Servs., Inc., No. B270277, 2017 WL
604721, at *3 (Cal. Ct. App. Feb. 15, 2017) (unpublished).
AFFIRMED.
3
Samsung Electronics America v. Daniel Ramirez
Combined Opinion