                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              JUN 18 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

MIRIAM GARCIA, on behalf of herself             No. 12-56287
and other similarly situated,
                                                D.C. No. 2:12-cv-01596-SJO-RZ
              Plaintiff - Appellee,

       v.                                       MEMORANDUM*

U.S. BANCORP, a corporation; U.S.
BANK N.A.,

              Defendants - Appellants.

                   Appeal from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding

                        Argued and Submitted June 3, 2014
                              Pasadena, California

Before: REINHARDT, FISHER and MURGUIA, Circuit Judges.

      Defendants U.S. Bancorp and U.S. Bank appeal the district court’s denial of

their motion to compel arbitration. We have jurisdiction under 9 U.S.C.

§ 16(a)(1)(B), and we affirm.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     On the basis of the undisputed facts, the district court found that the

bank representative’s description of the signature card as a document for

“obtain[ing] the bank atm card” failed to convey the true meaning of the signature

card’s terms; that Garcia’s reliance on that description was reasonable; and that

Garcia did not “consent to the terms in the Deposit Account Agreement,” so “a

valid agreement to arbitrate was never formed between the parties.” The signature

card purported to bind Garcia to a 50-page single-spaced document of terms and

conditions, Garcia told the bank representative that she was unable to read or

understand English and she expressly requested translated versions of the

documents presented to her. Under these circumstances, the district court’s

findings of fact were not clearly erroneous, and, because the absence of mutual

assent meant no contract was formed, the arbitration clause in the purported

agreement was of no force or effect. See Rosenthal v. Great W. Fin. Sec. Corp.,

926 P.2d 1061, 1081-83 (Cal. 1996); Gardner v. Rubin, 308 P.2d 892, 896 (Cal.

Ct. App. 1957).

      2.     The defendants waived any entitlement to a trial under Section 4 of

the Federal Arbitration Act by failing to request that procedure from the district

court, see Cabrera v. Cordis Corp., 134 F.3d 1418, 1420 (9th Cir. 1998), and by

failing to “specifically and distinctly” argue for that procedure in their opening


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brief on appeal, Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 994-95

(9th Cir 2009) (quoting Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.

1986)). Moreover, the district court did not abuse its discretion by not holding an

evidentiary hearing, because there were no disputed issues of fact material to its

decision, and because the defendants did not notify the district court of any need to

cross-examine Garcia about her declaration. Cf. United Commercial Ins. Serv.,

Inc. v. Paymaster Corp., 962 F.2d 853, 858 (9th Cir. 1992).

      3.     The defendants did not raise sufficiently to the district court their

argument that Garcia assented to the terms of the Deposit Account Agreement by

maintaining her account after receiving notice of changes to that agreement, and no

exceptional circumstances justify considering the argument for the first time on

appeal. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (“To

have been properly raised below, the argument must be raised sufficiently for the

trial court to rule on it.” (quoting Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th

Cir. 2000)) (internal quotation marks omitted)); In re Prof’l Inv. Props. of Am., 955

F.2d 623, 625 (9th Cir. 1992) (“The specific ‘exceptional circumstances’ that this

circuit has identified are as follows: (1) review is necessary to prevent a

miscarriage of justice; (2) a new issue arises while an appeal is pending because of

a change in the law and (3) the ‘issue presented is purely one of law and either


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does not depend on the factual record developed below, or the pertinent record has

been fully developed.’” (quoting Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.

1985))).

      4.     Because we affirm the district court’s conclusion that the parties never

formed an agreement to arbitrate, Garcia is not bound by the terms of the

arbitration clause. We therefore need not decide the remaining issues disputed by

the parties in this appeal.

      We affirm the district court’s order denying the defendants’ motion to

compel arbitration and remand for further proceedings. In so holding, we express

no opinion regarding the status of this case as a putative class action.

      AFFIRMED and REMANDED.




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