                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       MAR 15 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 sltuated,
                                                  D.C. No.
                Plaintiff-Appellant,              3:15-cv-01731-WQH-BGS

 v.
                                                  MEMORANDUM*
ONSTAR, LLC,

                Defendant-Appellee.

                    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

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

      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. 2017)

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

      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.

      REVERSED and REMANDED.




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