John Murphy v. Best Buy Stores, L.P. , 690 F. App'x 553 ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 05 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN MURPHY; GREG MASTERS; No. 15-55047
ROBERTA WEISS, on behalf of
themselves and all others similarly D.C. No.
situated, 2:07-cv-06465-AG-VBK
Plaintiffs-Appellants,
MEMORANDUM*
v.
BEST BUY STORES, L.P., a Virginia
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 November 9, 2016
Pasadena, California
Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.
John Murphy, Greg Masters, and Roberta Weiss appeal the district court’s
orders dismissing various state law claims and granting summary judgment in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
favor of Best Buy Stores, L.P. The facts are known to the parties and will not be
repeated here.
I
It appears that Murphy, Masters, and Weiss are barred from appealing the
district court’s February 11, 2011 order which dismissed some of Weiss’s claims
and all of Murphy and Masters’s claims against Best Buy.1 All three appellants
previously appealed such decision but never raised any arguments as to how the
district court erred. Murphy, 724 F.3d at 1223 n.1 (9th Cir. 2013) (effectively
dismissing such appeal by declining to review it). We reject this attempt to
relitigate their claims here. See Gausvic v. Perez, 392 F.3d 1006, 1008 n.1 (9th Cir.
2004) (noting that issues raised in a notice of appeal but never argued are deemed
abandoned).
II
Weiss argues that the district court erred in granting summary judgment
against her California consumer-protection claims, and we agree.
A
1
The February 11, 2011 order dismissed their Minnesota Prevention of
Consumer Fraud Act claim, their claim for money had and received, and their
claim for declaratory relief. It also dismissed all of Murphy and Masters’s
California consumer-protection claims. See Murphy v. DirecTV, Inc., 724 F.3d
1218, 1223 n.1 (9th Cir. 2013).
2
California’s Unfair Competition Law (“UCL”) limits standing to plaintiffs
who have “suffered injury in fact and [have] lost money or property as a result of
the unfair competition.” Cal. Bus. & Prof. Code § 17204. The California Supreme
Court has explained that a consumer has standing under Section 17204 where he or
she has been persuaded to pay for a product by another’s alleged
misrepresentations. Kwikset Corp. v. Superior Court, 246 P.3d 877, 890 (Cal.
2011). Even if such consumer cannot establish that he or she paid an above-market
premium for a given product, “the consumer has purchased a product that he or she
paid more for than he or she otherwise might have been willing to pay” absent the
alleged misrepresentation. Id. (emphasis original). California’s UCL grants
standing where a consumer shows that he or she would not have entered into a
transaction but for an alleged misrepresentation. Id.The deposition testimony given by Weiss was sufficient to create a genuine
issue of material fact regarding the elements of standing under Section 17204.
There, she stated that she would not have paid money for a DirecTV receiver had
Best Buy not misrepresented the true nature of the transaction. The district court
pointed out, however, that Weiss gave testimony claiming that she may still have
leased the device from another supplier in any event and observed that Weiss never
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argued that Best Buy’s misrepresentations resulted in her paying a premium for the
receiver.
Though Weiss provided testimony that both supported and discredited the
claim that she would not have paid for a television receiver but for the alleged
misrepresentations of Best Buy, we are satisfied that such testimony was sufficient
to survive a motion for summary judgment. A plaintiff’s burden, in any standing
inquiry, must be supported “with the manner and degree of evidence required at the
successive stages of litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992). To survive a motion for summary judgement, a plaintiff need not
definitively establish standing. Rather, Weiss was only required to set forth
sufficient evidence to create a genuine issue of material fact concerning such
requirements. Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th
Cir. 2002). Her testimony did just that: because Weiss claimed that she would not
have paid for the receiver but for the alleged misrepresentations of Best Buy, she
set forth sufficient evidence to create a triable issue of material fact regarding the
elements of standing under Section 17204 of the UCL.
B
California’s Consumer Legal Remedies Act (“CLRA”) provides standing to
“[a]ny consumer who suffers any damage as a result of the use or employment by
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any person of a method, act, or practice” violating the state’s consumer protection
laws. Cal. Civ. Code § 1780(a). Relevant to this appeal, we have held that plaintiffs
who have standing under California’s UCL “will, a fortiori, have suffered ‘any
damage’ for purposes of establishing CLRA standing.” Hinojos v. Kohl’s Corp.,
718 F.3d 1098, 1108 (9th Cir. 2013). Weiss has set forth sufficient evidence to
create a triable issue of material fact regarding the elements of standing under the
CLRA.
III
We DISMISS the appeal of the district court’s February 11, 2011 order. We
REVERSE the district court’s grant of summary judgment on Weiss’s consumer-
protection claims, and REMAND to the district court for further proceedings on
those claims. The parties shall bear their own costs on appeal.
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