contracting of the kind that on star is attempting to impose on consumers under california law silence or an action does not equal consent to mailed later terms and this is black letter law under winter of windsor mills golden obviously a contract that he signed that said that he agreed to any terms and conditions whatsoever if you look at the form that unsigned it is not called a contract it is not called an agreement called work authorization and contract and then like by the signature line the document emily miller in storage said this is a contract which includes all terms and conditions stated on the reverse side i'm star drafted this document it would have been a simple matter for our to use contract language such as agreement contract this is a contract this document is not obviously a contract under windsor mills where the document was called acknowledgement of the order that document was not found to be obviously a contract and it was not binding on the party even though it actually had all of the terms that the other party wanted to enforce printed on it the problem with this form is twofold first of all one it's not a contract number two even if it were a contract it did not adequately incorporate by reference the document that on just says the on star services and what does that even mean their own document page one forty nine in the record says services vary by model and model year there's no indication of what services are being discussed here does it mean the free trial that my client signed up for it says nothing about the free trial does it mean the minutes that she purchased it says nothing about purchasing minutes does not say i agreed to be bound by a the services and the problem with the district course order your honor the district court iranian's we relied on an exception to the rule that silence or inaction does not equal consent but does not apply in this tease at all what we have here is a situation where yes the district court said a contract was formed during the phone call the terms of that contract were on how would provide a full year of free trial and would provide the cell phone minutes that my client purchased and paid for by giving her debit card number once that call once a how what contract was done contract was formed my client's performance was complete at that moment on star immediately began performing itself it turned on the on star service it gave my client access to the cell phone minutes that she had bought and in fact she could have used up all of the cell phone minutes before the secondary document terms and conditions ever came in the mail under those circumstances when the parties have already agreed to perform certain contractual obligations mailing terms later is just an offer and an offer that has to be accepted through something other than silence or  action the case is that on star cited in their brief acadia and jurgen and this principle is also recognized in golden eagle say that if to parties to a contract one of them later mails a propose modification and the other party except the proposed benefit that would be a modification but my client did not accept anything further that was offered to her she all she accepted was a free trial in minutes that answer was already contractually obligated to provide and there's a good reason for this rule any other rule could lead to significant abuse for example what if the terms and conditions had said oh by the way our free trial we're actually going to impose a five ninety nine a month has them are serviced and if you don't cancel your free trial we're going to bill that your credit card that type of contracting and that type of contract modification because it's still an offer to modify a contract that wasn't accepted because my client or mr robinson neither one of them accepted anything beyond what on star was already contractually obligated to provide so for example in the acadia case where there were two adjacent landowner's one of them owned a well one party and there was a contract provide water one party sent a letter and a check saying here's the additional money that i will pay you if you agree to maintain the water pressure at a higher level than our contract requires the other party cashed the check accepting the benefit that was offered thereby working a modification of the contract we don't have a comparable situation here and that principle was part of the reason why this can't be samsung and also dang song held that in the box contract is not and enforceable and california law because nothing was offered to the plaintiffs in those cases than what they were already contractually entitled to they bought a phone they get to keep the phone they don't have to return the phone because there are terms in the box that was also the holding the customers don't have to town saw their service in order to get out of this term being this unilateral term being imposed on them that was also the rationale of the douglas case decided by this court so the exception that the district court relied on simply did not apply and i wanted to talk also about the nukes in place which is what the district court one of the cases the district or cited was knutson the other one was the district court case called bishops and  the gateway and considered the argument that in the box a contract should be enforceable and in north this court held that he'll be gateway does not reflect california law so this line of authority that sort of developed based on bishop is acknowledgement form and finding a binding contract the district court relied soley on the fact that she called to activate the service and then the terms were mailed later and you know i believe i had just discussed extensively why mailed later terms are not enforceable in circumstances like this the cases are very clear that they have to be some kind of notice during the initial interaction the party has to be confronted with the terms at the time that they are agreeing and there was no mention of any terms and conditions of any kind during the telephone conversation during which the services were activated good morning and may it please the court michael brody on behalf of defendant on starr as counsel indicated the sic a spot contract formation and the district court correctly found based on an evidentiary hearing that the parties formed a contract that included the on star terms and conditions one of the terms is an arbitration clause whether this matter is itself within the arbitration clause is not in dispute so the parties are in agreement that the contract was formed when ms robinson made the phone call to start to sign up for this is gibson service right we can time the initial contract was formed at that time correct and at that time was there any discussion or did anybody alert miss robinson to the fact that it dismantle terms and conditions would be mailed to her later i don't think the trial testimony and indicated that your honor she indicated that it was not disclosed to her in that telephone conversation so if it wasn't disclosed how can she be active actual or even constructive notice of the fact that there were additional terms and conditions because that contract formation that occurred at the time of the phone call that was not the first interaction between on star and mrs robinson the initial interactions began when they purchased the car several days two days really did she sign  acknowledgement or just the husband signed the acknowledge the husband signed the acknowledgement that the testimony of the trial court heard was was considerably more detailed than that the testimony indicated that the reason she did not sign the document was a matter of family dynamics this was her car it wasn't his car it was her car she was involved in the decision to purchase it she test drove it she shopped for it she negotiated she was involved in the decision to lease or to getting it even though she didn't right she saw him sign it correct or are our position is that at the initial meeting on december fifteenth when the husband signed and the party stipulated he read and understood the document which it was but what does that have to do with her and i contract between her and on star it's two separate parties yes they're married unless you're saying that that by virtue of the marriage somehow she's impute it with the with the knowledge so what difference does that those circumstances have to the contract formation during the phone call with miss robinson because unlike the other cases that are cited for example mercia this is robinson knew that this was a contractual situation she knew that an offer had previously been made well she knew it was a fifteenth an offer was made this is robinson received that offer and understood that the offer was to be accepted by pushing the button in the car and activating the service so you saw your way that's that's why that's why i asked you when the contract was formed between miss robinson and i'm starring you said it was when the phone call was made to during that phone call when she signed up for this question are you now saying that the offer was actually originally made when her husband signed acknowledgement no you're not i'm let me just be blunt and tell you what our position is under center fifteenth when the two of them sat there and the terms and conditions were described to them the acknowledgment was presented to them which explicitly referenced the terms and  offer was made that constitutes an offer not a contract when mrs robinson then two days later pushed the button she accepted the offer because she was advised to activate the service to engage in this contractual relationship you push the button she did that that constitutes the contract there was there was a that initiated a process when pushing the button the operator came suddenly came on the phone on the other side and she discussed the additional minutes but it was the pushing the button that constitutes the acceptance of the previously communicated offer mr robinson had pushed the button it was exactly the thing yes your honor i believe there would be no question in that well i'm going to change gears a little on this i first don't think this fits really within the terms within the box cases plaintiff relies on the north sea a case and i'd like to talk about that for a moment in nor sia the plaintiff nor cea had a communication with verizon a cell phone provider and entered into a contractual relationship with horizon there's no question but that there was a contract with horizon she then received a samsung cell phone she took it home and samsung contended that buried within the warranty was a contract that she was bound by in this court said no there was no reason for to understand contractual relationship with toyota and then sirius x m tried to say oh we had a contract to in this court said no there was no contractual situation this case is very different in that context because when the robinson sat across the table from the cadillac representative and received the g m knowledge from and which says i acknowledge that i agree seemed the terms and conditions sounds like couple to the service it was very different than those other cases it was explicitly freighted with contract so in that initial conversation she understood she's a sophisticated consumer she's a lawyer she understood that she was entering into the world of contract and at that point she received an offer which when she pushed the button excepted now what were the terms when she accepted that offer the plaintiff's contention is  terms are we give her twelve months free service and there's nothing else our contention is that when she accepted when they contend a contract was formed when that contract was formed what were the terms under california law where terms are made available to you even if you do not read them they become part of the contract so our first contention is that when she pushed the button and accepted the terms knowing that it was in a contractual context she was accepting a contract  offer but let's turn to the mail at later argument and look let's just address the facts on this a little bit she pushed the button on december seventeenth on december nineteenth g m mailed her a welcome kit we know that she received it because she produced the enrollment card at the hearing we know that she received the terms and conditions she also produced those at the hearing and the trial court found the her explanation that no i got it from my leasing company was not credible the court found she received the terms from us and this is just a matter of days after she pushed the button the charges she complains about didn't start for another year and in that  on star send her a series of additional communications trial testimony reflected this advising her of the terms and shortly before the charges were initiated they center another communication saying oh by the way you're about to get charged unless you cancel ok so that's what happened here why is that relevant well the plaintiff contends that there was this bare bones contract formed on december seventeenth when she pushed the button on december nineteenth we mailed to her the terms and the terms say these are the terms going forward if you do not reject them in thirty days you had a time period to reject them your bound by them and it fits with the end of the case is decided by the california courts and this court that provide the retention of benefits after the receipt of explicit contractual terms constitutes an offer an acceptance of an offer so the mailing of the terms if they were not already part of the contract constituted an offer to modify which she accepted through retained benefits retaining the benefits that's what the judge when i believe your honor held in the murphy versus direct t v case which this court affirmed in the facts were very similar the later mailing subsequent communications no question of a contractual relationship in the court found that to be sufficient now the argument we hear today and i don't mean to be  the argument they make in their brief is that there's no consideration there's nothing to support that because she was already bound i invite you to look at the terms of the of the on stark terms and conditions because they are mutual they don't just bind plaintiff to arbitration they bind on start to the provision of a particular type of service putting meat on this prior statement that previously they say just was a promise of some free service and in discussing the arbitration clause itself they are very mutual they provide not only must the plaintiff in this case arbitrate but i have to concede the testimony at trial was there was not a clause not a copy of the terms and conditions in the glove box a mistake was made but the terms and conditions were available to the robinsons they were available on the website the testimony at trial indicated that they were available there and always available there and mr robinson in lieu of testifying stipulated that he read and understood the acknowledgment which said i acknowledge i have received the terms and conditions copies are available in my glove box incorrect but the copies are also available online and they were so yes they were always available i would certainly you know buying into the fact mr robinson the question is how does that extend to mr right yes your honor i think for two ways first it binds mrs robinson when she pushes the button knowing that she's operating in a world of contracts and knowing because she sat next to her husband and even though of she doesn't know what's in the conqueror she does not and even if she did not know yes your honor she's not required when they say  what in the country again we know that there's an arbitration clause that's correct your honor signed or stand california law a party is bound to terms even if they did not read them as long as they're the sorts of things they had an opportunity to review and we c end she did but even if she didn't under some or nineteenth two days after she pushed the button we mailed the terms and conditions to her they provide that they are to be to go into terms and continued receipt of the benefits constitutes accepted offer and acceptance and the testimony here at trial was that they were mailed to katherine robinson and the only difference between him and he yes and i don't want to get away from her role in this there was testimony as to her involvement in the purchase of the automobile which was to be her car the lease of the automobile and the trial judge found the place tried to exclude the evidence of the husband's participation in this and the trial court found that it was indeed relevant that he had signed this form and that she was next to him at the time it was signed i think it's a recognition by the trial court that the trial cork thought that was relevant to her understanding that in the initial communication an offer had been made which she accepted by pushing the button so our position simply is that we have offer acceptance the initial offer reflects the terms and conditions which were referenced in the document and they were accepted by mrs robinson when she pushed the button alternatively days later a matter of two days later on starr mailed the terms and conditions to mrs robinson which she retained until this day and she retained throughout the time period relevant to form a contract i see my time is long past for the on this acknowledgement form is not an offer for a contract does not use any contractual language it does not say that a person who signs it will be bound to any contractual terms the document doesn't say that if i sign up for a free trial i am agreeing to be bound to terms it does not say if you push the button you will be agreeing to be bound to terms knutson says that a party cannot be obligated to act where there was no effective notice that action was required she able says that during the initial interactions with the defendant notice of the possibility of future amendments to the contract was not given this document does not say that any terms will be binding i will submit that because they elected to include on star elected to set this up to include the arbitration clause in a secondary document it's not in this document it's in a secondary document and when not the case the four elements of incorporation by reference have to be satisfied this and one of those the most one important one is consent to be bound using wording such as i wife and by pushing the button she accepted the offer astar relied heavily on the acknowledgement form and the fact that mrs robinson sat next to her husband when he signed the farm but no one argued that they were ever told that pressing a button meant you agree to be found contractually by terms and those were not the facts they were not no one at the dealership nor does this document say that if you press the button to sign up for the free trial or by cell phone minutes you will be  is that or provision really she has no memory of receiving or reading the terms and conditions when they came and here's another reason why she should not be bound by mail later terms if you look at the cover letter that transmit a letter that on star says was enclosed with  page one forty eight of the record it does both there was no booklet in the glove compartment that statement in this form that it's in the glove box was false on star knew it was false that would send you on a wild goose chase if you were looking for terms and conditions in the glove box because they were not there nor were a copy given to that mr robertson at the time that this was science that's another false statement in the in the in the in the document and the statement that there are the terms are quote unquote available on start up we objected to the website evidence as hearsay and inadmissible because they failed to produce any evidence of what the website would have actually looked like the setting all that aside missing here is it does not say i agree to be bound it's not obviously a contract and the letter that the transmittal letter that they mailed later also it does not say enclosed are important contract terms you must cancel your free trial or you will be bound it gave no notice clearly notified that and that inaction or failure to cancel will be binding and the reason i say that i want to emphasize what's on the front cover of this including a cover letter that does not tell you these are contract terms and that does not say you must cancel your free trial or you will be bound in long beach provide comics which is the california court of appeal the court of appeal specifically said that if this was a website case the same principle applies even if you have a prominent or conspicuous hyperlink on the web page with the phrase terms of use and that you know they say terms and conditions whatever that means with the phrase terms of use without notifying customers that the linked page contains binding contractual terms the phrase terms of use may have no meaning or a different meaning to a large segment of the internet using public the burden is  on start to give customers notice that their actions or inactions will have consequences and they did not do that in the acknowledgment form they did not do that in the cover letter that came with the booklet they ga start changes taxes didn't do that anymore from my dealer the dealer didn't give them a copy of the booklet or at w w w dot on start up com which the terms and conditions were not actually available at that website unless you scroll down and enlarge the page and saw a little tiny grain at the bottom of the web page right there that the link you would have they said that the that the terms and conditions were not on star dot com which is not the web page where you would actually find them you would have to scroll down enlarge find a submerged link and your honor the document does not say i  be bound and that is critical that outcome determinative if the document does not say i agree to be bound by the secondary document it doesn't matter if it was on the line or  which he actually did it was not in the stack you know when you go into a lease a car is a big stack of documents the terms and conditions were not given to him and that and on star admitted that that was not part of their normal practice at the time to have the dealer give a copy of the terms and conditions under those circumstances they what they should have done was have their agent on the phone call say there will be terms and conditions of pluggable to this contract and you must go to our website and sign indicate your affirmative agreement we know that was because that's how they change the thank you very much