NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

HOAI DANG, on behalf of himself and all

others similarly situated, 

Plaintiff-Appellant,

 v.

SAMSUNG ELECTRONICS CO., LTD.;

SAMSUNG ELECTRONICS AMERICA,

INC.; SAMSUNG

TELECOMMUNICATIONS AMERICA,

LLC, 

Defendants-Appellees.

No. 15-16768

D.C. No. 5:14-cv-00530-LHK

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Argued and Submitted October 17, 2016

San Francisco, California

Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.

Hoai Dang appeals the district court’s order granting the motion to compel

arbitration filed by Samsung Telecommunications America, LLC, Samsung

FILED

JAN 19 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
Electronics America, Inc., and Samsung Electronics Co., Ltd. (collectively,

“Samsung”). We have subject matter jurisdiction under 28 U.S.C. § 1291. 

The district court erred in granting Samsung’s motion to compel arbitration

because Dang and Samsung did not form an agreement to arbitrate under

California law. See AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.

643, 648 (1986). Dang did not expressly agree to the arbitration provision

contained in the “Standard Limited Warranty,” which was included in the brochure

entitled “Important Information for the Samsung SPH-L710” contained in the

Galaxy SIII box. Nor did Dang accept Samsung’s offer by failing to opt out of the

arbitration provision because an offeree’s silence does not constitute acceptance

under California law, Golden Eagle Ins. Co. v. Foremost Ins. Co., 20 Cal. App. 4th

1372, 1385 (1993), and the inclusion of an arbitration provision in a product box is

not an exception to this general rule, Norcia v. Samsung Telecomms. Am., No. 14-

16994, — F.3d — (9th Cir. 2017). Moreover, even if Dang could be bound in

certain circumstances by the failure to opt out of terms included in a product box

under California law, no contract was formed in this case because Samsung did not

provide Dang with adequate notice that the information brochure contained an

offer to enter into a bilateral contract. See id.; see also Windsor Mills, Inc. v.

Collins & Aikman Corp., 25 Cal. App. 3d 987, 993 (1972). Although the back of

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the Galaxy SIII box gave Dang notice that the box contained a “warranty

disclaimer associated with SAFE,” a seller’s offer of a warranty does not create a

binding bilateral contract with a buyer. Norcia, No. 14-16994, — F.3d at —.

Dang did not concede that he formed an agreement to arbitrate with

Samsung in his operative complaint. Dang’s “amended complaint supersedes the

original, the latter being treated thereafter as non-existent,” Loux v. Rhay, 375 F.2d

55, 57 (9th Cir. 1967), overruled on other grounds by Lacey v. Maricopa Cty., 693

F.3d 896, 928 (9th Cir. 2012) (en banc), and Dang argued in his opposition to

Samsung’s motion to compel that the parties failed to form an agreement to

arbitrate.

REVERSED AND REMANDED

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