NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL AMBERS, individually and on behalf of a class of persons similarly situated, Plaintiff - Appellant,
v. BUY.COM, INC., a Delaware corporation, Defendant - Appellee. No. 13-55953 D.C. No. 8:13-cv-00196-AG-JPR
MEMORANDUM *

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding Argued and Submitted June 1, 2015 Pasadena, California Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and KORMAN, *** Senior District Judge. Michael Ambers appeals from the district court’s grant of a motion to dismiss brought by Buy.com. We have jurisdiction pursuant to 28 U.S.C. § 1291. 

# FILED
JUN 23 2015 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. *** The Honorable Edward R. Korman, Se nior District Judge for the U.S. District Court for the Eastern District of New York, sitting by designation.We affirm. Because the partie s are familiar with the history of this case, we need not recount it here. Ambers alleges Buy.com violated th e Song-Beverly Credit Card Act (“the Act”), Cal. Civ. Code § 1747.08, when th e online retailer required him to record his telephone number on a webform during the checkout process using a credit card to purchase a set of DVDs. He brings a putative class action on behalf of all Buy.com customers similarly situated. “When interpreting state law, federal courts are bound by decisions of the state’s highest court. In the absence of su ch a decision, a federal court must predict how the highest state court would decidethe issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.” Easyriders Freedom F.I.G.H.T. v. Hannigan , 92 F.3d 1486, 1494 n.4 (9th Cir. 1996) (citati ons and quotation marks omitted). The California Supreme Court has not s quarely decided the issue presented by this case, and no California case has applied the Act to include online transactions. However, the court has decided a case involving similar issues, namely Apple Inc. v. Superior Court of Los Angeles County , 292 P.3d 883 (Cal. 2013). Although not binding on this action, the reasoning employed by the court in Apple in holding that the Act does not apply to online downloadable product
-2-transactions persuades us to believe th e California Supreme Court would hold that Ambers’ purchase of goods for delivery from Buy.com is outside the ambit of the Act as well. In Apple , the court noted that the Act made no mention of online commercial transactions, and predated the prevalen ce of such transactions by a decade. Id. at 886. Therefore, the court concluded that “[t]he statutory language suggests that the Legislature, at the time it enacted former section 1747.8, did not contemplate commercial transactions conducted in the Internet.” Id. at 887. After examining the entire statutory scheme, the legislativ e history, and subsequent legislative developments, the court concluded “that online transactions involving electronically downloadable products fall out side the coverage of the statute.” Id
. at 896. Although the court did not reach the precise question presented here, its logic and statutory analysis leads us to conclude that, if presented with the question, the California Supreme Court would hold that the Act does not apply to online transactions. Our conclusion is buttressed by a recent decision of the California Court of Appeal, which is relevant to our predictive exercise. See Easyriders Freedom F.I.G.H.T. , 92 F.3d at 1494 n.4. Indeed, the Supreme Court has held that, “federal courts . . . must follow the decisions of in termediate state courts in the absence of -3-convincing evidence that the highest court of the state would decide differently.” Stoner v. N.Y. Life Ins. Co. , 311 U.S. 464, 467 (1940). The only reasoned California appellate court decision in the wake of Apple is Ambers v. Beverages & More, Inc. (“BevMo”), 2015 WL 1969815 (Cal. Ct. App. May 4, 2015), a case involving the same plaintiff and same claim for relief as this action. Interpreting Apple , the Court of Appeal held that § 1747.08 “does not apply to [Ambers’] online purchase of merchandise subsequen tly retrieved at a BevMo retail store.” Id. at *5. The Court of Appeal statedthat the reasoning and analysis in Apple applied to Ambers’ BevMo transaction with equal force. Id. at *4. Distinguishing BevMo from the present circumstance involving Buy.com is impossible. In fact, the case for obtaining a telephone number to verify the transaction here is even stronger because Buy.com shipped the DVDs to Ambers rather than allowing him to retrieve them at a retail store. In the Buy.com transaction, Ambers never showed his face to the retailer and theref ore never presented any opportunity for it to verify the transaction in person. Itwas at least theoretically possible that in-person verification of Ambers’ identity was available to the merchant in BevMo because he came to pick up the alcohol. Nevertheless, the Court of Appeal still found the Act inapplicable.

-4-Therefore, given the analysis of the California Supreme Court in Apple , the guidance of the California Court of Appeal in BevMo , and the lack of any contrary California authority, we agree with the di strict court that the California Supreme Court probably would decline to extend th e Act to apply to online transactions. Therefore, we conclude that the district court properly granted the motion to dismiss. Ambers’ motion for judicial notice is granted. We need not consider alternate grounds for dismissal presented by Buy.com,
see Affordable Housing Dev. Corp. v. City of Fresno , 433 F.3d 1182, 1193 (9th Cir. 2006), nor any other issue urged by the parties.

AFFIRMED.

-5-