Kathryn M. Robinson, individually and on behalf of all others similarly situated v. Onstar, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHRYN M. ROBINSON, individually
and on behalf of all others similarly situated,
Plaintiff-Appellant,
v.
ONSTAR, LLC,
Defendant-Appellee.
No. 16-56412
D.C. No.
3:15-cv-01731-WQH-BGS
Southern District of California,
San Diego
ORDER
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.
FILED
MAY 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHRYN M. ROBINSON, individually
and on behalf of all others similarly situated,
Plaintiff-Appellant,
v.
ONSTAR, LLC,
Defendant-Appellee.
No. 16-56412
D.C. No.
3:15-cv-01731-WQH-BGS
AMENDED MEMORANDUM*
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.
FILED
MAY 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
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

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3
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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