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.