Michael Ambers v. buy.com

FILED
NOT FOR PUBLICATION JUN 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL AMBERS, individually and on No. 13-55953
behalf of a class of persons similarly
situated, D.C. No. 8:13-cv-00196-AG-JPR
Plaintiff - Appellant,
MEMORANDUM*
v.
BUY.COM, INC., a Delaware corporation,
Defendant - Appellee.
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.
*
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, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
We affirm. Because the parties are familiar with the history of this case, we need
not recount it here.
Ambers alleges Buy.com violated the Song-Beverly Credit Card Act (“the
Act”), Cal. Civ. Code § 1747.08, when the 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 such a decision, a federal court must predict
how the highest state court would decide the 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) (citations and quotation marks omitted).
The California Supreme Court has not squarely 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
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transactions persuades us to believe the 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 prevalence 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 legislative history, and subsequent legislative
developments, the court concluded “that online transactions involving
electronically downloadable products fall outside 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 intermediate state courts in the absence of
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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 subsequently retrieved at a BevMo retail store.”
Id. at *5. The Court of Appeal stated that 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 therefore never presented any opportunity for it
to verify the transaction in person. It was 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.
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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 district court that the California Supreme
Court probably would decline to extend the 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.
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