NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANCE BAIRD, STEVE ALTES, L OUIS LECIEJEWSKI, AND KRISHNENDU CHAKRABORTY , Plaintiff s
- Appell ants ,

v. SAMSUNG ELECTRONICS AM ER ICA, INC. , Defendants

- Appell ee
. No. 1 8

- 1 6579
D.C. No. 4:17

- cv
- 06407

- JSW

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Jeffrey S. White , District Judge, Presiding
Submitted January 10, 2020

San Francisco, California
Before: WALLACE and FRIEDLAND , Circuit Judges, and LASNIK, * * District Judge. Lance Baird, Steve Altes, Louis Leciejewski, and Krishnendu Chakraborty (hereinafter, “plaintiffs ”) appeal from the district court’s dismissal of their claim s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 

# FILED

FEB 18 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 against Samsung Electronics America, Inc. (hereinafter, “ Samsung ”) . Underlying
the dismissal was t he district court ’s conclusion that post

- sale disclaimers regarding the functionality of Sams ung’ s Smart TVs were part of the parties’ bargain and that plaintiffs had therefore failed to allege actionable claims

. Plaintiffs appealed that ruling. The district court had jurisdiction under 28 U.S.C. §1332(d)(2) because the amount in controversy was a lleged to be greater than $5,000,000 , and the parties satisfied minimal diversity requirements. We have jurisdiction pursuant to 28 U.S.C. § 1291

. W e reverse and remand for further
consideration

. Plaintiffs allege that they purchased Samsung Smart TVs in 2011 and 2012
in reliance on Samsung’s express advertising and marketing representations that the product would give the user access to YouTube. Plaintiffs further allege that Samsung knew at the time that access to Yo uTube could be discontinued at any point

. Shortly after plaintiffs purchased their Smart TVs, Samsung began transitioning from Smart TVs that had a flash

- based YouTube app lication (“app”)
to Smart TVs that had an HTML5

- based YouTube app. In 2017 , YouTube permanently stopped functioning on p laintiffs’ Smart TVs because the company running YouTube discontinued the flash

- based app

. YouTube explained that it and its “device partners” had decided it was “the right time to end

- of

- life” the flash

based YouTube app in favor of the HTML5 version of t he app because the flash

-3 based app could not access new features that were being added to the YouTube
app
. Samsung and YouTube made suggestions regarding additional products that
could be used to continue accessing YouTube on Smart TVs purchased before
2013 ; Samsung allegedly offered no remedy or fix for the problem.
P laintiffs filed this putative class action s eeking damages, attorney’s fees
and costs , and specific performance in the form of reinstatement of thei r access to
YouTube. P laintiffs assert ed various c laims , including breach of contract, negligent misrepresentation, and violations of consumer protection laws . A ll of plaintiffs’ claims were dismissed by the district court for failure to state a claim
upon which relief could be granted under Fed eral R ule of Civ il P rocedure 12(b)(6). In seeking dismissal of plaintiffs’ breach of contract claim, Samsung argued

t hat its representations regarding the accessibility of YouTube were true at the time of purchase (because purchasers were in fact able to access YouTube for several
years post

- purchase) , that it had never p romised purchasers that they would be able
to access YouTube for the entire life of the Smart TV , and that it had expressly
disclaimed continual access to YouTube in t he user manuals and other documents

. The district court did not determine whether the advertising and packaging of Samsung’s Smart TVs were independently misleading. Rather, the district court
noted tha t plaintiffs alleged that Samsung breached a purchase agreement including the representations made through advertising and packaging and went on4 to consider whether other terms

— in particular, the disclaimers on which Samsung
relies

— were also part of the pa rties’ bargain . The district court took judicial notice
of four ( or possibly eight) documents that were in the box with the Smart TV or were displayed on the screen when the TV was plugged in

. 1 It concluded that , because “[d]isclaimers included with warra nties are part of the express contract underlying a sale,” the post

- sale disclaimers effectively clarified Samsung’s advertising and marketing representations regarding access to YouTube

. This
hold ing informed the district court ’s analysis and dismissal of plaintiffs’ breach of
contract, 2 negligent misrepresentation, fraud, consumer protection, and unjust
enrichment claims

. 3

1 On appeal, Plaintiffs explain

— and Samsung does not dispute

— that the only disclaimers were contained in electronic manuals that purchasers had to turn on the Smart TVs to access

.
2 Plaintiff’s bre ach of contract claim is more accurately construed as a breach of express warranty claim under California law. Compare Cal. Com. Code § 2313(1)(a) (“Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes p art of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise

. ”) , and Cal. Com. Code § 2714 ( providing breach of warranty remedies in the event “the buy er has accepted goods”), with Cal. Com. Code § 2711 (providing breach of contract remedies in the event “the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance”). Therefore, on remand, the breach of contract claim should be treated as a breach of express warranty claim.

3 The breach of the implied warranty of merchantability claim was dismissed on other grounds. The dismissal of that claim has not been challenged on appeal.5 In opposing Samsung’s motion to dismiss the breach of contract claim, plaintiffs raise d a number of arguments including , inter alia , that: (a) disclaimers that c ould be accessed by consumer s only after they purchased the Smart TV, took it home, and attempted to use the product did not
become part of the parties’ bargain u nder California law; and (b) even if the disclaimers we re part of the purchase agreement, they were substantively and procedurally unconscionable and , therefore , unenforceable
under California la w
. 4
The district court failed to address these arguments , despite the fact that they both had to be resolved in Samsung’s favor before the court could conclude that the disclaimers were part of the parties’ bargain and /or were enforceable

. T he order obliquely acknowledges that t here was a temporal disconnect between plaintiffs’ purchase of the Smart TVs and the post

- purchase disclosure of limitations on the promised access to YouTube. It does not, however, analyze the impact of the delay

on t he basis of the parties’ bargain under California law

. 5 With regards to

4 P laintiffs raised their unconscionability argument in arguing against Samsung’s introduction of evidence of disclaimers ; the argument was therefore not waived.

5 While an express affirmation of fact or promise made by a seller may be clarified by words or conduct tending to negate or limit the representation , Cal. Com. Code §§ 2313(1)(a) and 2316(1), “it is undoubtedly the ordinary rule that it is too late to make a disclaimer of a warranty after a sale has been consummated , ” Charles Lomori & Son v. Globe Labs. , 95 P.2d 173, 176 ( Cal. Ct. App. 1939). In addition,6 purchasers’ assent, the district court took judicial notice of certain documents and
concluded that the disclaimers contained therein we re part of the parties’ agreement. The district court did not consistently identify the disclaimer language
it found relevant , however, or discuss whether the writings would put a reasonable consumer on notice that contractual terms were in the offing. 6 The district court did not address p laintiffs’ a rgument regarding substantive and procedural

un c ons c ionability at all

. The allegations of the complaint raise a number of issues regarding the disclaimer of express warranties under California law, including:

● w hether a seller can use post

- purchase discl aimers to negate or limit express representations it made in its efforts to sell the product;

where a disclaimer is actually inconsistent with an express warranty, “words of disclaimer or modification give way to words of warrant y unless some clear agreement between the parties dictates a c ontrary relationship.” Hauter v. Zogarts , 534 P.2d 377, 386 ( Cal. 1975).

6 “Attempts to escape liability for warranties . . . by disclaimers made upon or after delivery of the goods, by means of language on an invoice, receipt or similar notice, are inef fectual unless the buyer assents or he is charged with knowledge of nonwarranty as to the transactions.” Klein v. Asgrow Seed Co. , 54 Cal. Rptr. 609, 616 (Ct. App. 1966) (quotation marks omitted). If, as appears to be the case , the district court took ju dicial notice of only the user manual that was in the box with plaintiffs’ Smart TV s and the electronic manuals containing disclaimers to which the user manuals directed the purchaser , there is no evidence that plaintiffs manifested assent to , or knew about, the hidden terms.7 ● whether the disclaimer s in this case contradict ed an express warrant y and

were thus inoperative under Cal. Com. Code § 2316(1);

● whether a post

- purchase disclaimer buried in a lengthy digital document is

un enforceable ( for instance, because the purchaser did not manifest assent)

. Although the adequacy of the allegations of the complaint is reviewed de novo on appeal , Skilstaf, Inc. v. CVS Ca remark Corp. , 669 F.3d 1005, 1014 (9 th Cir. 2012) , “we nonetheless consider it prudent to remand to the district court” where the case involves tangled issues of state law, there is no indication that the district court
considered issues that were essentia l to its ultimate conclusion, and i t is unclear which documents were judicially noticed by the district court or how the noticed
documents informed the analysis

. Ariz. Libertarian Party, Inc. v. Bayless , 351 F.3d 1277, 1283 (9 th Cir. 2003). In the circumst ances presented here, w e hold that “a
full analysis by the district court may assist us in our review. ” Sorosky v. Burroughs Corp. , 826 F.2d 794, 802 (9 th Cir. 1987). Apparently recognizing that the district court’s analysis of the express warranty issues wa s in complete , Samsung argues that the dismissal should nevertheless be affirmed on the independent ground that, in the absence of a n
express promise of perpetual acc ess to YouTube , plaintiffs have failed to allege a
breach. The district court expressly declined to “address whether the advertising8 and packaging of Samsung’s Smart TV boxe s were independently misleading , ”
and we decline to do so in the first instance.
REVERSED AND REMANDED.