                           NOT FOR PUBLICATION                           FILED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

DULCE ALONDRA VELASQUEZ-                        No.    17-56556
REYES, on behalf of herself and others
similarly situated,                             D.C. No.
                                                5:16-cv-01953-DMG-KK
                Plaintiff-Appellee,

 v.                                             MEMORANDUM*

SAMSUNG ELECTRONICS AMERICA,
INC., New Jersey corporation,

                Defendant-Appellant.

                   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.
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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