                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         MAY 1 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 situated,
                                                  D.C. No.
                Plaintiff-Appellant,              3:15-cv-01731-WQH-BGS
                                                  Southern District of California,
 v.                                               San Diego

ONSTAR, LLC,                                      ORDER

                Defendant-Appellee.

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

      The prior memorandum disposition filed on March 15, 2018, is hereby

amended concurrent with the filing of the amended disposition today.

      With these amendments, the panel has voted to deny the petition for panel

rehearing. Judge Wardlaw and Judge Nguyen have voted to deny the petition for

rehearing en banc, and Judge Tashima has so recommended.

      The full court was advised of the petition for rehearing en banc and no judge

has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

      The petition for rehearing and the petition for rehearing en banc are

DENIED. No further petitions for rehearing or rehearing en banc may be filed in

response to the amended disposition.
                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       MAY 1 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 situated,
                                                  D.C. No.
                Plaintiff-Appellant,              3:15-cv-01731-WQH-BGS

 v.
                                                  AMENDED 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: TASHIMA, WARDLAW, 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.) (quoting

Schnabel v. Trilegiant Corp., 697 F.3d 110, 124 (2d Cir. 2012)), cert. denied, 138

S. Ct. 203 (2017).

      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.

      Because the agreement when formed did not include the terms and

conditions, OnStar’s subsequent mailing of them to Robinson was an offer to

modify the agreement. Robinson did not accept this offer by retaining the OnStar

service to which she was entitled under the original agreement. See Main St. &

Agric. Park R.R. v. L.A. Traction Co., 61 P. 937, 938 (Cal. 1900) (“[A]n agreement

adding to the terms of an existing agreement between the same parties, and by

which new and onerous terms are imposed upon one of the parties without any


                                          2
compensating advantage, requires a consideration to support it . . . .”); see also

Norcia, 845 F.3d at 1285–86 (holding that inaction after receipt of offer for

additional terms requiring arbitration was insufficient to bind offeree who was

entitled to the benefits he retained regardless of whether he opted out of the

additional terms).

      REVERSED and REMANDED.




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