                                                                            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                           NOT FOR PUBLICATION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


                                            2
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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