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United States Court of Appeals for the Ninth Circuit
May 13, 20211, Submitted, Pasadena, California; May 24, 2021, Filed
Plaintiff-Appellant Linda Hall appeals from the judgment and order of the district court, granting Defendants-Appellees Time, Inc. and Meredith Corp.'s motion to dismiss her amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Her original complaint also had been dismissed with leave to amend. Hall, on behalf of a class, asserted in both her original and amended complaints that Appellees violated California's Automatic Renewal Law, Cal. Bus. & Prof. Code § 17600 et seq. ("ARL"), when they automatically [**2] renewed her subscription to People Magazine without first obtaining her explicit and "affirmative" consent to the automatic renewal, and by failing to disclose the automatic renewal of her subscription "in a clear and conspicuous manner" and in "visual proximity" to the request for her consent. Cal. Bus. & Prof. Code § 17602(a)(1), (2). We have jurisdiction under 28 U.S.C. § 1291. The facts and procedural history necessary to determine this case are discussed here; otherwise, [*386] familiarity is assumed. For the reasons that follow, we affirm.
] We review "de novo a district court's order granting a motion to dismiss for failure to state a claim." Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1175 (9th Cir. 2021). We may affirm the dismissal "based on any ground supported by the record." Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). ] Because there is no California Supreme Court decision that interprets the relevant ARL provisions, we "must predict how that court would decide" any interpretive issues presented. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603, 610 (9th Cir. 2020); see also Gravquick A/S v. Trimble Navigation Int'l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003) ("In the absence of a controlling California Supreme Court decision, the panel must predict how the California Supreme Court would decide the issue, using intermediate appellate court decisions, statutes, and decisions from other jurisdictions as interpretive aids.").
First, the district court correctly concluded that the Automatic Renewal [**3] Notice appearing on the checkout page satisfies the "clear and conspicuous" and "visual proximity" requirements under Section 17602(a)(1). The ARL provides that "clear and conspicuous" means "[(i)] in larger type than the surrounding text, or [(ii)] in contrasting type, font, or color to the surrounding text of the same size, or [(iii)] set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language." Cal. Bus. & Prof. Code § 17601(c). Here, the Automatic Renewal Notice appears in a text box highlighted in yellow, with the bolded label "Automatic Renewal Notice" displayed at the top. The only image near the Automatic Renewal Notice is an offer for another magazine subscription, which is predominately in navy-blue. The Automatic Renewal Notice is therefore in "contrasting color" to its surrounding text or "set off from the surrounding text" with highlighting and bolded text, "in a manner that clearly calls attention to the language." Id. The "visual proximity" requirement of the ARL requires "visual proximity," not immediate adjacency, between the "automatic renewal offer terms" and "the request for consent." Id. § 17602(a)(1) (emphasis added). The "Submit Order" button is less [**4] than forty words and one small image removed from the Automatic Renewal Notice and satisfies the "visual proximity" requirement of Section 17602(a)(1). Hall cites no authority and offers no reasoning for more stringent requirements than those required by the statute's text.
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857 Fed. Appx. 385 *; 2021 U.S. App. LEXIS 15368 **; 2021 WL 2071991
LINDA HALL, Plaintiff-Appellant, v. TIME, INC. and MEREDITH CORP., Defendants-Appellees.
Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
Subsequent History: Rehearing denied by, En banc, Rehearing denied by Hall v. Time, Inc., 2021 U.S. App. LEXIS 20010 (9th Cir. Cal., July 6, 2021)
Request denied by Hall v. Time, Inc., 2021 U.S. App. LEXIS 21141 (9th Cir., July 16, 2021)
Prior History: [**1] Appeal from the United States District Court for the Central District of California. D.C. No. 8:19-cv-01153-CJC-ADS. Cormac J. Carney, District Judge, Presiding.
Hall v. Time, Inc., 2020 U.S. Dist. LEXIS 44149 (C.D. Cal., Mar. 13, 2020)
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