Kathryn Robinson v. Onstar, LLC

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 1 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KATHRYN M. ROBINSON, individually No. 16-56412 and on behalf of all others similarly situated, D.C. No. Plaintiff-Appellant, 3:15-cv-01731-WQH-BGS Southern District of California, v. San Diego

ONSTAR, LLC, ORDER

Defendant-Appellee.

Before: TASHIMA, WARDLAW, and NGUYEN, Circuit Judges.

The prior memorandum disposition filed on March 15, 2018, is hereby

amended concurrent with the filing of the amended disposition today.

With these amendments, the panel has voted to deny the petition for panel

rehearing. Judge Wardlaw and Judge Nguyen have voted to deny the petition for

rehearing en banc, and Judge Tashima has so recommended.

The full court was advised of the petition for rehearing en banc and no judge

has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en banc are

DENIED. No further petitions for rehearing or rehearing en banc may be filed in

response to the amended disposition. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 1 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KATHRYN M. ROBINSON, individually No. 16-56412 and on behalf of all others similarly situated, D.C. No. Plaintiff-Appellant, 3:15-cv-01731-WQH-BGS

v. AMENDED MEMORANDUM* ONSTAR, LLC,

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted March 6, 2018 Pasadena, California

Kathryn Robinson appeals the district court’s dismissal of her complaint

pursuant to an arbitration clause that the district court concluded was enforceable.

We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Davidson v.

Kimberly-Clark Corp., 873 F.3d 1103, 1109 (9th Cir. 2017), we reverse and

remand for further proceedings.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The parties agree that Robinson and OnStar formed an agreement when she

called OnStar to activate her one-year trial subscription. At that time, Robinson

was unaware that OnStar intended to send her additional terms and conditions,

including the arbitration provision. “[A] consumer [must] be on notice of the

existence of a term before he or she can be legally held to have assented to it.”

Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d 1279, 1289 (9th Cir.) (quoting

Schnabel v. Trilegiant Corp., 697 F.3d 110, 124 (2d Cir. 2012)), cert. denied, 138

S. Ct. 203 (2017).

That the terms and conditions were “available” to Robinson in some sense is

irrelevant when she had neither actual nor constructive notice of their existence at

the time of her agreement with OnStar. Likewise, California Civil Code section

1589 obligated Robinson only “so far as the facts [were] known, or ought to [have

been] known” to her.

Because the agreement when formed did not include the terms and

conditions, OnStar’s subsequent mailing of them to Robinson was an offer to

modify the agreement. Robinson did not accept this offer by retaining the OnStar

service to which she was entitled under the original agreement. See Main St. &

Agric. Park R.R. v. L.A. Traction Co., 61 P. 937, 938 (Cal. 1900) (“[A]n agreement

adding to the terms of an existing agreement between the same parties, and by

which new and onerous terms are imposed upon one of the parties without any

2 compensating advantage, requires a consideration to support it . . . .”); see also

Norcia, 845 F.3d at 1285–86 (holding that inaction after receipt of offer for

additional terms requiring arbitration was insufficient to bind offeree who was

entitled to the benefits he retained regardless of whether he opted out of the

additional terms).

REVERSED and REMANDED.