Dulce Alondra Velasquez- Reyes, on behalf of herself and others similarly situated v. SAMSUNG ELECTRONICS AMERICA, INC., New Jersey corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DULCE ALONDRA VELASQUEZ-
REYES, on behalf of herself and others
similarly situated,
Plaintiff-Appellee,
v.
SAMSUNG ELECTRONICS AMERICA,
INC., New Jersey corporation,
Defendant-Appellant.
No. 17-56556
D.C. No.
5:16-cv-01953-DMG-KK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, 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., appeals the district court’s denial of its
motion to compel arbitration of Dulce Velasquez-Reyes’s claims stemming from
* 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.
FILED
SEP 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Samsung’s alleged false advertising. Because the parties are familiar with the
facts, we do not recite them here. We have jurisdiction under 9 U.S.C. § 16, 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
California’s intermediate court of appeals, both of which address Hill only in

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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.

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