                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 27 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



JOHN SCHNEIDER, on behalf of himself             No. 09-55580
and all others similarly situated,
                                                 D.C. No. 2:08-cv-07856-R-CW
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

VERIZON INTERNET SERVICES, INC.;
GTE.NET LLC, DBA Verizon Internet
Solutions,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                        Argued and Submitted June 9, 2010
                              Pasadena, California

Before:       TROTT and W. FLETCHER, Circuit Judges, and BREYER,
              District Judge.**




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
      This case concerns the application of California's statutory restrictions on

liquidated damages clauses in the context of early termination fees. Plaintiff

entered into a defined-length contract with Defendants for the provision of internet

access. The contract further provided for the payment of an early termination fee

('ETF') of ü99 if Plaintiff chose to terminate his service before the expiration of

his contract. Plaintiff chose to terminate his service early, and so was forced to pay

the ETF. Plaintiff argues that this early termination fee constitutes a liquidated

damages clause, and that such a clause is void under California Civil Code y 1671.

The district court dismissed Plaintiff's action with prejudice for failure to state a

claim. Plaintiff timely appealed. This Court has jurisdiction under 28 U.S.C. y

1291, and we AFFIRM the judgment of the district court as to the 12(b)(6)

dismissal. However, the case is REMANDED so that Plaintiff can amend his

complaint and seeµ relief on different grounds.

      Defendant Verizon offers a variety of plans by which a consumer can gain

access to its fiber optic internet service. Verizon offers month-to-month internet

service, as well as one and two year subscriptions. Customers who sign up for a

month-to-month plan incur an installation fee of ü79.99, with the option of setting

up additional computers for ü89.99 each. Customers who sign up for at least a

one-year subscription receive free installation on the primary computer. Customers


                                            2
who sign up for the one-year plan also receive a monthly discount of

approximately ü10 compared to the fee for a month-to-month plan.

      Schneider signed up for Verizon's service some time in 2005 or 2006. He

cancelled his service in August 2008 to obtain less expensive Internet service from

another provider. Soon thereafter, Verizon imposed the ETF.1

      Plaintiff sought relief by filing this action. On January 26, 2009, Verizon

moved to dismiss the complaint for failure to state a claim. The District Court

granted the motion with prejudice. We review such an order de novo. Platt Elec.

Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1053-54 (9th Cir. 2008).

      The central controversy in this case is whether the ETF imposed on Plaintiff

constitutes a liquidated damages provision that is subject to California Civil Code

y 1671. The California Supreme Court addressed a similar clause in Blanµ v.

Borden, 11 Cal. 3d 963 (1974). Blanµ arose from a legal action brought by a real

estate broµer against a property owner who violated an exclusive-right-to-sell

contract. The contract provided that if the property owner chose to bacµ out before

the natural expiration of the contract, she would pay the broµer a pre-determined


         1
           Plaintiff appears to concede that the ETF was imposed in a manner
consistent with the terms of the contract, and yet it is apparent that the ETF was
imposed more than more year after Plaintiff signed up for service. Plaintiff has
suggested that the contract was renewed without his notice, but this is not plead in
the complaint.

                                          3
fee. Blanµ concluded that 'the withdrawal-from-sale clause in an exclusive-right-

to-sell contract [is] not . . . a void penalty provision.' Id. at 970. It explained that

the clause provided 'a true option or alternative: if, during the term of an

exclusive-right-to-sell contract, the owner changes his mind and decides that he

does not wish to sell the subject property after all, he retains the power to terminate

the agent's otherwise exclusive right through the payment of a sum certain set forth

in the contract.' Id.

       The same is true here. Plaintiff availed himself of a defined-length plan that

included certain discounts on up-front fees--fees that he would have incurred in a

month-to-month plan. He did so, however, with the µnowledge that if he wished to

terminate the contract early, it would result in a set fee. This presented Plaintiff

with a rational choice: he tooµ advantage of lower fees, but with the possibility of

an ETF if he cancelled the service early. Under Blanµ, such a clause is not a

penalty provision. See also Morris v. Redwood Empire Bancorp, 128 Cal. App.

4th 1305, 1314 (2005) ('Where a contract for a specified period of time permits a

party to terminate the agreement before its expiration in exchange for a lump-sum

monetary payment, the payment is considered merely an alternative to

performance, and not a penalty.'). The district court was therefore correct to

dismiss this claim.


                                            4
       The dissent reads Blanµ differently. It argues that the ETF in this case,

unliµe the fee paid in Blanµ, imposed a net financial loss on Plaintiff.2 In Blanµ,

the property owner chose to µeep the property and pay a fee, rather than sell the

property. Both options, according to the dissent, might appeal to a rational owner.

The ETF in this case, according to the dissent, amounted to a choice between

paying the ETF or simply allowing the contract to expire naturally, without any

further cost.

       This analysis fails to account for Blanµ's admonition that it is not whether

the choice is 'rational' when a party maµes it--e.g., at the time a consumer is

considering terminating his contract early--but only whether it is rational when

'viewed from the time of maµing the contract.' 11 Cal. 3d at 971. As noted

above, when Plaintiff agreed to this contract, Defendant correspondingly agreed to

waive an installation fee of ü79.99. Defendant also agreed to charge a discounted

monthly rate. Therefore, when Plaintiff chose to terminate the contract, he had

already accrued a ü79.99 benefit in addition to a ü10-per-month discount on the

monthly fee when compared to the month-to-month plan. Therefore, the discounts



       2
        The dissent concedes that, for the majority of the contractual period, the
ETF provision was a net financial benefit to consumers. This is so because
choosing to terminate early in the contract, and paying the ü99 fee, is less
expensive than paying the remaining monthly payments.

                                           5
obtained by virtue of the year-long agreement would quicµly add up to more than

the ETF. By the third month of a contract, a consumer has accrued a benefit worth

ü99.99 compared to what he would have paid under a month-to-month contract for

comparable service. For Plaintiff in this case, who cancelled the contract far later,

he accrued a discount that far outweighed the ü99 ETF. Therefore, a consumer at

the time of the contract might reasonably foresee performing either 'alternative'

encompassed in the contract.

      Moreover, even if the consumer could foresee the ETF as a more expensive

option than simply allowing the contract to expire, this does not doom the clause

under Blanµ. Blanµ does not require than an alternative performance provision

offer choices with precisely equal out-of-pocµet costs.3 On the contrary, it defines

liquidated damages clauses in a far more narrow fashion. Such a clause

'realistically contemplates no element of free rational choice on the part of the

obligor insofar as his performance is concerned.' Id. (emphasis added). Even if

the ETF were a somewhat more expensive option than permitting the agreement to

expire, this does not mean that it 'contemplates no element of free rational choice.'



      3
         Indeed, Blanµ could not do so without contradicting prior California
Supreme Court case law. See Garrett v. Coast & Southern Federal Savings & Loan
Assoc., 9 Cal. 3d 731, 736 (1973) (discussing Thompson v. Gorner, 104 Cal. 168
(1894)).

                                          6
On the contrary, as the dissent explains, paying the ETF affords a consumer certain

benefits, such as the ability to move without retaining internet service at a prior

residence.

       The dissent seeµs to impose a rigidity to the 'alternative performance' test

that is not evident in the California Supreme Court's opinions. On the contrary,

the relevant opinions emphasize a range of different issues, all in the service of

determining whether a given contract's alternative provisions are reasonable.

Given the trade-off that is manifest in the structure of this contract, it is certainly

reasonable for a consumer to trade a year-long commitment for the possibility of

substantial discounts over the life of the contract.

       Dismissal was also appropriate with regard to Plaintiff's other claims. First,

as to Plaintiff's claim for unconscionability, the ETF here does not shocµ the

conscience. See 24 Hour Fitness, Inc. v. Superior Court, 66 Cal. App. 4th 1199,

1213 (1998). As the above analysis reflects, Plaintiff faced a rational choice upon

entering into his contract with Defendant: he tooµ advantage of lower up-front

costs in exchange for a longer term contract, with the understanding that he would

pay an ETF if he chose to terminate his service early. Indeed, in Morris the

California Court of Appeals concluded that a ü150 termination fee was not

substantively unconscionable, explaining that 'Morris has made no allegation that


                                            7
National's termination fee is grossly out of line with fees charged by other banµs.

Nor has Morris alleged any facts demonstrating the California banµing industry is

oligopolistic.' 128 Cal. App. 4th at 1323. Schneider has similarly failed to maµe

any such allegations.

      Similarly, as to Plaintiff's claim under California's Consumer's Legal

Remedies Act ('CRLA'), the complaint frames the issue as entirely derivative of

Plaintiff's other claims. Therefore, if there is no violation of y 1671 and no claim

for unconscionability, the CRLA claim must fail as well.

      Finally, Plaintiff contends that he should have been granted leave to amend.

The district judge never discussed at the hearing whether dismissal would be with

or without prejudice. The prospect of a prejudicial dismissal was first raised when

Defendant--at the district judge's request--submitted a proposed order dismissing

the case. Even though the issue had not been discussed at the hearing, the

proposed order indicated that dismissal was without leave to amend. Plaintiff filed

an objection to the proposed order, noting that '[t]he Court did not state [at the

hearing] that the motion was granted with prejudice.' Plaintiff requested 'that the

Court grant him leave to amend pursuant to the liberal standards of Fed. R. Civ. P.

15(A).' However, the Court signed Defendant's proposed order without

addressing Plaintiff's request. This was an error. See Manzareµ v. St. Paul Fire &


                                           8
Marine Ins. Co., 519 F.3d 1025, 1034 (9th Cir. 2008) ('An outright refusal to grant

leave to amend without a justifying reason is, however, an abuse of discretion.'

(internal quotations omitted)). Despite the fact that Plaintiff's claims under y 1671

fail, he should be permitted to amend his complaint in order to pursue his other

claims. Therefore, this case is AFFIRMED as to the dismissal, but is REVERSED

as to the issue of amendment and REMANDED with instructions to permit the

filing of an amended complaint.

      Each party shall bear its own costs on appeal.

AFFIRMED IN PART AND REVERSED IN PART and REMANDED 4.




      4
          Motion of SBC Internet Services, Inc. to file an am icus brief is GRANT ED.


                                                     9
                                                                        FILED
Schneider v. Verizon Internet Services, No. 09-55580                     SEP 27 2010

                                                                     MOLLY C. DWYER, CLERK
                                                                      U.S . CO U RT OF AP PE A LS

W. FLETCHER, dissenting:


      Essentially for the reasons given in my dissent in Hutchison v. AT&T
Internet Services, No. 09-55847, filed today, I respectfully dissent.
