Michael AMBERS, individually and on behalf of a class of persons similarly situated, Plaintiff-Appellant, v. BUY.COM, INC., a Delaware corporation, Defendant-Appellee, 617 F. App'x 728

MEMORANDUM 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. 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, 56 Cal.4th 128, 151 Cal.Rptr.3d 841, 292 P.3d 883 (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 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. 151 Cal.Rptr.3d 841, 292 P.3d 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. 151 Cal.Rptr.3d 841, 292 P.3d 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. 151 Cal.Rptr.3d 841, 292 P.3d 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 convincing evidence that the highest court of the state would decide differently.” Stoner v. N.Y. Life Ins. Co., 311 U.S. 464, 467, 61 S.Ct. 336, 85 L.Ed. 284 (1940). The only reasoned California appellate court decision in the wake of Apple is Ambers v. Beverages & More, Inc. (“BevMo”), 236 Cal.App.4th 508, 186 Cal.Rptr.3d 533 (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 539. The Court of Appeal stated that the reasoning and analysis in Apple applied to Ambers’ BevMo transaction with equal force. Id. at 538. 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.

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, 438 F.3d 1182, 1193 (9th Cir.2006), nor any other issue urged by the parties. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.