Andrew Roley v. Google LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW ROLEY, Nos. 21-15677
Plaintiff-Appellant/ 21-15830
Cross-Appellee,
D.C. No.
v. 5:18-cv-07537-
BLF
GOOGLE LLC,
Defendant-Appellee/
Cross-Appellant. OPINION
Appeals from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted April 15, 2022
San Francisco, California
Filed July 14, 2022
Before: Eugene E. Siler,* A. Wallace Tashima, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Tashima
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 ROLEY V. GOOGLE
SUMMARY**
California Contract Law
The panel affirmed the district court’s summary judgment
to Google LLC on plaintiff’s breach of contract and
conversion claims in a class action alleging that an email sent
to plaintiff by Google constituted an offer for one terabyte of
Google Drive storage under California contract law.
Google sent an email to users, such as plaintiff, who had
contributed photos to Google maps, but had not yet joined the
company’s Local Guides Program, inviting them to join the
program. Plaintiff joined the Local Guides program,
achieved Level 4 status by contributing local content to
Google, and claimed his terabyte of free Google Drive
storage. Google advised him the benefit was for two years,
and plaintiff contended that when he read the initial email, he
assumed Google was offering a lifetime benefit. In ruling on
Google’s summary judgment motion, the district court
considered three documents – the photo impact email, the
enrollment page, and the Program Rules - and concluded that
they did not constitute a unilateral contract offer for one
terabyte of free Google Drive storage for life.
Advertisements are not typically understood as offers, but
that rule includes an exception for offers of a reward. The
operative question under California law is “whether the
advertiser, in clear and positive terms, promised to render
performance in exchange for something requested by the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROLEY V. GOOGLE 3
advertiser, and whether the recipient of the advertisement
reasonably might have concluded that by acting in accordance
with the request a contract would be formed.” Donovan v.
RRL Corp., 27 P.3d 702, 710 (Cal. 2001). The panel held
that the district court properly concluded that Google’s
communications did not constitute an offer for one terabyte
of Google Drive storage. The Google documents at issue
neither informed users how they might conclude the bargain,
nor invited the performance of a specific act, leaving nothing
for negotiation. The panel rejected plaintiff’s arguments to
the contrary. The panel concluded that the district court
correctly granted summary judgment to Google on plaintiff’s
breach of contract claim.
The panel held that the district court also properly granted
summary judgment to Google on plaintiff’s conversion claim.
In his reply brief, plaintiff contended that his conversion
claim survived summary judgment even if his breach of
contract claim did not. Because plaintiff did not present this
argument to the district court or in his opening brief, the
panel declined to address it.
4 ROLEY V. GOOGLE
COUNSEL
Christian Schreiber (argued) and Monique Olivier, Olivier
Schreiber & Chao LLP, San Francisco, California; Robert K.
Shelquist and Rebecca Peterson, Lockridge Grindal Nauen
PLLP, Minneapolis, Minnesota; Vildan A. Teske, Teske
Katz, PLLP, Minneapolis, Minnesota; for Plaintiff-
Appellant/Cross-Appellee.
Whitty Somvichian (argued), Michael G. Rhodes, Cameron
J. Clark, and Julie M. Veroff, San Francisco, California;
Courtney E. Gladstone, Cooley LLP, Boston, Massachusetts;
for Defendant-Appellee/Cross-Appellant.
OPINION
TASHIMA, Circuit Judge:
Defendant Google LLC sent users an email promising that
they could unlock cool benefits like one terabyte of Google
Drive storage by joining the company’s Local Guides
program and contributing content to Google Maps. Plaintiff
Andrew Roley alleges, for himself and on behalf of a class,
that the email constituted an offer for one terabyte of Google
Drive storage under California contract law.
“[A]dvertisements have been held to constitute offers where
they invite the performance of a specific act without further
communication and leave nothing for negotiation.” Sateriale
v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 788 (9th Cir.
2012) (quoting Donovan v. RRL Corp., 27 P.3d 702, 710
(Cal. 2001)). Here, the email, along with related documents
constituting the purported offer, said nothing about how much
content users had to contribute to Google Maps in order to
ROLEY V. GOOGLE 5
unlock the Google Drive benefit. The district court rejected
Roley’s contention that the email constituted an offer for a
terabyte of Google Drive storage and granted summary
judgment to Google on Roley’s breach of contract claim. We
affirm.
BACKGROUND
I.
Google sent an email (the “Photo Impact Email”) to users
who had contributed photos to Google Maps, but not yet
joined the company’s Local Guides Program. After
congratulating users for their past contributions, the email
invited them to join the program:
You’re invited to join Local Guides!
Get rewards for the photos you’ve shared.
When you become a Local Guide, you earn
points for your photos and other contributions
to Google Maps. These points can unlock
cool benefits like
- 1TB of Google Drive storage
- Invitations to exclusive events
- Early access to new Google products
- Local Guides badges
6 ROLEY V. GOOGLE
You’ve already earned points with your
photos. Why not join our community of
explorers today?
The email directed users to a sign-up page (the
“Enrollment Page”) where they could join the Local Guides
program. The Enrollment Page required users to agree to the
Local Guides Program Terms and Conditions (“Program
Rules”) before joining the program. It also hyperlinked to the
Program Rules.
The Program Rules set out the terms and conditions of the
Local Guides program. They stated that, by signing up for
the program, users “agree[d] to be bound” by Google’s Terms
of Service and the Program Rules and advised users to “read
each of these two documents, as together they form a binding
agreement between you and Google.”
The Program Rules informed users that, “[a]s a Local
Guide, you will be placed into a level based on . . . how much
local content you contribute to Google, including how many
High Quality reviews you’ve written.” They explained that
“[e]ach level may give access to different benefits,” and
advised users to visit “our benefits page” to learn about
current benefits. They also said that “[a] review is considered
‘High Quality’ when it adheres to the guidelines described in
our help center or as otherwise provided by Google.” They
further explained that level requirements and benefits were
subject to change, “at Google’s sole discretion.”
The Program Rules included several hyperlinks to the
Local Guides benefits page (“Benefits Page”). They also
included a hyperlink to a Local Guides Help Center page
describing the guidelines used to identify High Quality
ROLEY V. GOOGLE 7
reviews. Some versions of the Program Rules also included
a hyperlink to the main page of the Help Center.
The Benefits Page described the number of points needed
to achieve each level, the benefits unlocked at each level, and
the ways Local Guides could earn points. It stated that Level
4 required “200+ Points” and unlocked three benefits,
including “Upgrade your Google Drive storage free.”
The Local Guides Help Center was a series of webpages
providing information about the program. Two Help Center
pages stated that the Google Drive benefit was valid for two
years. According to one, “If you become a Local Guide
Level 4+, you can receive 1 TB of free Google Drive storage
for two years.” The other said that a Local Guide could
“Receive 1 TB of free Google Drive storage for two years”
by reaching “Level 4” and acquiring “200+ points.”
After receiving a version of the Photo Impact Email,
Roley joined the Local Guides program, achieved Level 4
status, and claimed his Google Drive benefit. He received an
email from Google advising him that “[t]his upgrade is active
for 2 years at 1 TB of additional storage.” Roley contends
that this was the first he learned of the two-year time
limitation on the Google Drive benefit. He contends that,
when he read the Photo Impact Email, he assumed Google
was offering a lifetime benefit. He also points out that
neither the Photo Impact Email, the Enrollment Page, the
Program Rules, nor the Benefits Page disclosed the two-year
limitation. He acknowledges that Google mentioned the two-
year limitation on the two Help Center pages discussed above
and in various social media postings, but denies that he ever
reviewed those materials.
8 ROLEY V. GOOGLE
II.
Roley filed a class action complaint on behalf of himself
and approximately 8,000 other Google users who received the
Photo Impact Email, joined the Local Guides program, and
redeemed the Google Drive benefit. He asserted claims for
breach of contract and conversion, alleging that “Google
promised Plaintiff and Class members a free terabyte of data
storage if they achieved ‘Level 4’ status as a Local Guide,”
that “Plaintiff and Class members accepted the terms of the
contract through performance,” and that “Google breached
the contract by rescinding its provision of a free terabyte of
data storage after Level 4 Guides had performed the work that
Google required of them.” He alleged that he and other class
members had reasonably and justifiably understood the Photo
Impact Email as an “offer by Google of a ‘free terabyte’ of
data storage [for] an indefinite amount of time.”
The district court certified a class, defined as “All
residents of the United States who received the Photo Impact
Email and attained Level 4 status as a Google Local Guide
after November 12, 2015, and redeemed the benefit of 1 TB
of Google Drive storage.” Google then moved for summary
judgment. Google challenged Roley’s contention that the
Photo Impact Email constituted an offer for one terabyte of
Google Drive storage for life. The company pointed out that
the email used conditional language, said nothing about a
lifetime benefit, and failed to specify the performance
required of Local Guides to qualify for the benefit—earning
200 points and achieving Level 4 status. In his opposition,
Roley argued that “the photo impact email was plainly an
offer,” that Google had “offered 1 TB of free Drive storage in
exchange for achieving Level 4 Local Guide status,” that the
email’s failure to disclose the performance required to qualify
ROLEY V. GOOGLE 9
for the benefit was “inconsequential,” and that the lifetime
nature of the benefit was implicit in the offer.
At the hearing on Google’s summary judgment motion,
the district court asked Roley to identify the specific
documents that he believed constituted the offer. Roley
initially identified five documents—the Photo Impact Email,
the Enrollment Page, the Program Rules, the Benefits Page,
and Google’s Terms of Service. Ultimately, however, Roley
advised the court that it could “ignore” the Terms of Service,
and agreed with the court’s suggestion that “the Benefits Page
doesn’t need to be considered part of the offer.” Accordingly,
in ruling on the summary judgment motion, the district court
considered whether three documents—the Photo Impact
Email, the Enrollment Page, and the Program
Rules—constituted a unilateral contract offer for one terabyte
of free Google Drive storage for life. Roley v. Google LLC,
No. 18-CV-07537-BLF, 2021 WL 1091917, at *3–7 (N.D.
Cal. Mar. 22, 2021).
The district court granted Google’s summary judgment
motion, ruling:
As a matter of law, the Photo Impact Email,
Enrollment Page, and [Program Rules] cannot
constitute the “clear and positive terms”
communicating the specific act Mr. Roley
needed to perform to accept the contract. The
Photo Impact Email, Enrollment Page, and
[Program Rules] never state that Mr. Roley
must achieve Level 4 Local Guide status to
receive the 1 TB Benefit, and none of the
documents state[s] the 1 TB Benefit lasts
indefinitely.
10 ROLEY V. GOOGLE
Id. at *6. Accordingly, the court held that “no unilateral
contract exists.” Id. The court also granted summary
judgment to Google on Roley’s conversion claim, noting that
“[b]oth parties agree that the conversion claim is derivative
of the breach of contract claim.” Id. at *7. Roley timely
appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. “We
review a district court’s grant of summary judgment de
novo.” Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th
Cir. 2003).
DISCUSSION
I.
Roley contends that the district court erred by granting
summary judgment to Google on his breach of contract claim.
We disagree.
Contracts may be bilateral or unilateral. “A bilateral
contract consists of mutual promises made in exchange for
each other by each of the two contracting parties,” Sateriale,
697 F.3d at 785 (quoting Sully-Miller Contracting Co. v.
Gledson/Cashman Constr., Inc., 126 Cal. Rptr. 2d 400, 403
(Ct. App. 2002)), while a unilateral contract “involves the
exchange of a promise for a performance,” id. (citing Harris
v. Time, Inc., 237 Cal. Rptr. 584, 587 (Ct. App. 1987)). An
offer to enter into a unilateral contract “is accepted by
rendering a performance rather than providing a promise.”
Id.ROLEY V. GOOGLE 11
In either case, “[a]n offer is the manifestation of
willingness to enter into a bargain, so made as to justify
another person in understanding that his assent to that bargain
is invited and will conclude it.” Id. at 784 (quoting Donovan,
27 P.3d at 709). “The determination of whether a particular
communication constitutes an operative offer, rather than an
inoperative step in the preliminary negotiation of a contract,
depends upon all the surrounding circumstances.” Id.(quoting Donovan, 27 P.3d at 709). “[T]he pertinent inquiry
is whether the individual to whom the communication was
made had reason to believe that it was intended as an offer.”
Id. (alteration in original) (quoting Donovan, 27 P.3d at 709).
Advertisements are not typically understood as offers, but
that rule “includes an exception for offers of a reward,” and
“[s]everal courts . . . have applied the exception to customer
rewards programs.” Id. at 785–86. We therefore do not
“presume that [Google]’s communications did not constitute
an offer merely because they were addressed to the general
public in the form of advertisements.” Id. at 787. “The
operative question under California law . . . is simply
‘whether the advertiser, in clear and positive terms, promised
to render performance in exchange for something requested
by the advertiser, and whether the recipient of the
advertisement reasonably might have concluded that by
acting in accordance with the request a contract would be
formed.’” Id. at 787 (quoting Donovan, 27 P.3d at 710).
An offeree need not know all the terms of the offer.
“[A]n offeree, knowing that an offer has been made to him or
her, but not knowing all its terms, may accept whatever terms
it contains.” 1 B. E. Witkin, Summary of California Law,
Contracts § 181 (11th ed. 2021). Indeed, even where an offer
to enter into a unilateral contract is involved, the offeree need
12 ROLEY V. GOOGLE
not know the offer’s precise terms or the precise nature of the
performance called for. Id. § 182 (citing Hunter v. Sparling,
197 P.2d 807, 815 (Cal. Ct. App. 1948)). To qualify as an
offer to enter into a unilateral contract, however, “the offer
must be sufficiently definite to lead the offeree to understand
that a bargain is being proposed and how the offeree may
conclude the bargain.” 1 Williston on Contracts § 4:7 (4th
ed. 2022) (emphasis added). Thus, “advertisements have
been held to constitute offers where they invite the
performance of a specific act without further communication
and leave nothing for negotiation.” Sateriale, 697 F.3d
at 788 (quoting Donovan, 27 P.3d at 710) (emphases added).
Here, the district court properly concluded that Google’s
communications did not constitute an offer for one terabyte
of Google Drive storage. Although the Photo Impact Email
informed users that contributing to Google Maps could
“unlock cool benefits like . . . 1 TB of Google Drive storage,”
neither the Photo Impact Email, the Enrollment Page, nor the
Program Rules said anything about how much content users
had to contribute to Google Maps to unlock the Google Drive
benefit. The documents neither informed users how they
might conclude the bargain, Williston, supra, § 4:7, nor
“invite[d] the performance of a specific act without further
communication,” leaving “nothing for negotiation,” Sateriale,
697 F.3d at 788 (quoting Donovan, 27 P.3d at 710). Users
knew that they had to upload content to Google Maps to
qualify for the benefit, but they would have had no idea how
much content was required. Accordingly, the district court
properly rejected Roley’s contention that these three
documents constituted a valid offer for a terabyte of Google
Drive storage.
Roley’s arguments to the contrary are unpersuasive.
ROLEY V. GOOGLE 13
First, Roley contends that the district court reached the
wrong conclusion because it “erroneously limited its
consideration of Google’s offer” to three documents and
“ignored relevant documents” such as the Benefits Page and
the Terms of Service. We disagree. At the summary
judgment hearing, Roley informed the district court that it
could “ignore” the Terms of Service, and agreed with the
district court’s suggestion that the Benefits Page need not be
considered part of the offer. The district court understandably
relied on Roley’s concessions, Roley, 2021 WL 1091917,
at *3–6, and we can discern no error in the court having done
so. See Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1170 n.3
(9th Cir. 2001) (“At oral argument, Kohler’s counsel
conceded that Kohler has not carried her burden of pleading
and proving diversity jurisdiction. Therefore, the sole basis
for federal jurisdiction over Kohler’s state claims is
supplemental jurisdiction.”); Amberhill Props. v. City of
Berkeley, 814 F.2d 1340, 1341 (9th Cir. 1987) (“The Board’s
statement [at oral argument] is binding on it in any further
proceedings in this case.”).
Roley’s contention that the district court “forced” him to
disclaim reliance on the Benefits Page, is without support in
the record. To be sure, the district court had stated its view
that, if the Benefits Page were incorporated into the offer,
then so too were the Help Center pages disclosing the two-
year limitation on the Google Drive benefit, given that the
Program Rules linked to both the Benefits Page and the Help
Center. But Roley was free to argue to the district court, as
he has argued on appeal, that the offer incorporated the
Benefits Page but not the Help Center pages mentioning the
two-year limitation. He did not do so. When the district
court asked Roley whether he was “saying that the Benefits
Pages doesn’t need to be considered part of the offer,” Roley
14 ROLEY V. GOOGLE
could have informed the court that this was not what he was
saying. Instead, his counsel responded, “I think that’s a fair
characterization, your honor.” The concession was voluntary.
Roley alternatively argues that the district court reached
the wrong conclusion because the court “ignored the parties’
clear course of conduct.” He asserts that the district court
ignored the fact that Google admitted making
an offer to Local Guides [and] ignored
Google’s many actions in performing on the
contract. For example, the district court did
not attempt to explain why, if Google had
indeed created no obligation to Class
members, it followed each posting,
determined which were worthy of being
awarded points, tallied the points, and
communicated to Local Guides when Level
thresholds were being approached or crossed.
We again disagree.
To be sure, the evidence Roley cites may support the
existence of a contract. In Sateriale, we held that the
plaintiffs had alleged “a contract the essence of which was
their general right to redeem their Camel Cash certificates,
during the life of the program, for whatever rewards
merchandise RJR made available, with RJR’s discretion
limited only by the implied duty of good faith performance.”
697 F.3d at 788. Applying the same principles here, the
evidence may well support the conclusion that Roley and the
other class members had a contractual right to whatever
benefits Google specified in program documents, which, of
course, might have included the Google Drive benefit. Roley,
ROLEY V. GOOGLE 15
however, did not present that theory to the district court. He
instead argued that the Photo Impact Email constituted an
offer for one terabyte of Google Drive storage. The district
court limited its analysis to the only theory argued and, for
the reasons stated earlier, properly rejected it. We do not
fault the district court for confining its analysis to the theory
Roley presented. Nor will we consider Roley’s broader,
Sateriale-style contract theory for the first time on appeal. As
a general proposition, “we will not reframe an appeal to
review what would be in effect a different case than the one
decided by the district court.” Baccei v. United States,
632 F.3d 1140, 1149 (9th Cir. 2011).
In sum, the district court properly rejected Roley’s
argument that the Photo Impact Email, the Enrollment Page,
and the Program Rules constituted an offer for one terabyte
of Google Drive storage. The district court therefore
correctly granted summary judgment to Google on Roley’s
breach of contract claim.
II.
The district court also properly granted summary
judgment to Google on Roley’s conversion claim. In his
reply brief, Roley contends that his conversion claim survives
summary judgment even if his breach of contract claim does
not. Again, Roley did not present this argument to the district
court, or in his opening brief on appeal. We therefore decline
to address it. See Cruz v. Int’l Collection Corp., 673 F.3d
991, 998 (9th Cir. 2012) (“We review only issues which are
argued specifically and distinctly in a party’s opening brief.”
(quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994))); Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.
16 ROLEY V. GOOGLE
1985) (“As a general rule, we will not consider an issue raised
for the first time on appeal . . . .”).
CONCLUSION
The district court properly granted summary judgment to
Google on Roley’s breach of contract and conversion claims.
Because we affirm the judgment on this basis, we do not
reach the issue raised in Google’s conditional cross-appeal of
the district court’s class certification order.
AFFIRMED.